KERALA STATE ROAD TRANSPORT CORPORATION versus BABY P. P. & ORS. on 16 May 2018

[2018] 5 S.C.R. 747

KERALA STATE ROAD TRANSPORT CORPORATION

v.

BABY P. P. & ORS.

(Civil Appeal No. 5257 of 2018)

MAY 16, 2018

[KURIAN JOSEPH, MOHAN M. SHANTANAGOUDAR

AND NAVIN SINHA, JJ.]

Motor Vehicles Act, 1988 – Chapter VI – ss.99, 100, 103 ands.104 and its Proviso – Road Transport Service – Grant of temporarypermit to private stage carriage operators on notified routes – Whennot permissible – Scheme notified by State for providing properlycoordinated passenger road transport services – Clause 4 of theScheme inter alia provided that the services to be operated by theState Transport Undertaking (STU) along the notified route were tothe exclusion of private stage carriages operating in the said route– Respondent no.1, private stage carriage operator soughttemporary permit under proviso to s.104 to run services for theroute Pallissery-Angamaly-Perumbavoor – Rejected by RegionalTransport Authority (RTA) – Held: Scheme formulated by the StateGovernment is a law by itself and holds the fort in all matters involvingpermits – Since it partially excludes private stage carriage operatorson the notified route, the same is to be adhered to – No privatestage carriage operator can operate beyond the stipulations of thescheme – Route from Angamaly to Perumbavoor is a notified route – Thus, STU has exclusive right to ply its stage carriages – Provisoto s.104 gives only a limited breath of life to the private sector, viz.,only if the vehicles of STU do not operate on the notified route asper the scheme, temporary permits may be granted to the privatestage carriage operators – Undisputedly, more than 450 buses ofSTU ply everyday on the notified route – Further, the Scheme doesnot permit private stage carriage operators to overlap more than 5kms or 5 % (whichever is less) of the route proposed by it – However,respondent no.1 sought temporary permit for the route whichoverlaps by 13 kms on the notified route – Such overlap is clearlyprohibited under the Scheme – Respondent no.1 does not fall withinthe proviso to s.104– RTA was justified in rejecting the claim of

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Arespondent no.1 – Road Transport Corporations Act, 1950 – s.3–Motor Vehicles Act, 1939 – ss.68-C and 68-D.

Words & Phrases – ‘Intersection’ & ‘Overlapping’ –Distinction between – Discussed – Motor Vehicles Act, 1988.

Interpretation of Statutes – Proviso vis-a-vis main Section –BInterpretation of – Discussed – Motor Vehicles Act, 1988 – s.104and proviso.

Allowing the appeals, the Court

HELD: 1.1 The law governing the formulation of schemesCis found in Sections 99 and 100 of the Motor Vehicles Act, 1988.Chapter VI of the Act deals with special provisions relating toState Transport Undertaking (STUs). Preparation and publicationof proposals regarding road transport services of the STU hasbeen dealt with under Section 99. If the State Government is ofthe opinion that for the purpose of providing efficient, adequate,Deconomical, and properly guaranteed road transport services inrelation to any area or route or operation thereto, these roadtransport services should be run and operated by the STU to theexclusion (complete or partial) of private stage carriage operators,a proposal in the Official Gazette shall be published as providedEunder Section 99. After considering the objections, if any, andafter giving an opportunity to the objectors or theirrepresentatives and the representatives of the STU, the StateGovernment may approve or modify such proposals. Theapproved or modified scheme will be published in the OfficialGazette of the State Government, apart from newspapers, underFSection 100(3). After publication, the scheme shall be final andthe same is called “the approved scheme”. The area or the route,to which the scheme relates, shall be called “Notified Area” or“Notified Route”. Section 103 deals with the issue of permits bythe STU pursuant to the scheme, if approved. Section 104 relatesGto the restrictions on grant of permits in respect of the notifiedarea or notified route. [Paras 11, 12] [758-G; 759-F-H; 760-A-C]

1.2 Section 104 makes it amply clear that where a schemehas been published under Section 100(3) of the Act in respect ofany notified area or notified route, grant of any permit on thenotified route or area is impermissible, except in accordance withH

the provisions of the scheme. However, the proviso clarifies thatwherever the STU has not sought any permit in respect of anynotified route or notified area in pursuance to the scheme, theRTA (or STA, as the case may be) may grant a temporary permitto any private stage carriage operator in respect of such notifiedarea or notified route, on the condition that such permit shallcease to be effective on the issue of a permit to the STU in respectof that area or route. The scheme formulated and published bythe State Government under Section 100 (3) of the Act holds thefort in all matters involving permits. [Paras 15, 16] [761-A-C, D]

1.3 The proviso to Section 104 of the Act cannot be readaloof from the main section. A plain reading of the proviso toSection 104 makes it clear that temporary permits can be grantedto the private sector, wherever the STU does not operate itsservice. However, the proviso is also subject to the stipulationsof the scheme, akin to the main section. Since the Scheme onhand partially excludes private stage carriage operators on thenotified route, the same is to be adhered to. It is necessary in thepublic interest that road transport services on notified routesshould be run and operated by the STU to the complete or partialexclusions of private stage carriage operators. In a State wherethe scheme has been published, subject to such schemeformulated by the State, no private stage carriage operator canoperate beyond the stipulations of the scheme. This also appliesto applications for temporary permits under the proviso to Section104 of the Act. [Paras 17, 18] [762-F; 763-C-D]

1.4 The route from Angamaly to Perumbavoor isundisputedly a notified route. The STU thus has the exclusiveright or monopoly to ply its stage carriages and obtain the requiredpermit as per the Scheme to the exclusion of private stagecarriage operators. The proviso gives only a limited breath oflife to the private sector, viz., only if the vehicles of the STU donot operate on the notified route as per the scheme, in whichevent temporary permits may be granted to the private stagecarriage operators. In the matter on hand, undisputedly, morethan 450 buses of the STU ply everyday on the notified routewhich pass from Angamaly to Perumbavoor. It is not open for therespondent no.1 to claim that the STU is not running sufficient AB

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Abuses from Palliserry to Perumbavoor via Angamaly. Admittedly,Palliserry to Angamaly is not a notified route. The dispute betweenthe parties, thus, virtually relates to the route between Angamalyto Perumbavoor and not the route between Palliserry toAngamaly. Even otherwise it is not disputed that the STU is plying8 trips from Palliserry to Perumbavoor via Angamaly. Apart fromBthe same, the private sector is operating sufficient number ofservices from Palliserry to Angamaly. It is brought to the noticeof this Court by the STU that the STU may provide more buses ifrequired between Palliserry to Angamaly. Moreover, it is openfor the respondent no.1 to seek permission as per law before theCconcerned authority and ply its buses on the non-notified route.However, when it comes to operating on the notified route, thatis, in between Angamaly and Perumbavoor, the respondent no.1cannot operate its services for more than 5 kms or 5% of itsroute (whichever is less). Admittedly, part of the respondent no.1’sroute measuring 13 kms is between Angamaly and Perumbavoor,Dand that entire patch of 13 kms overlaps the notified route. Thetotal route length applied for by the respondent no.1 is only 28kms. The overlap thus, permitted on the notified route (in thecase on hand) as per the Scheme could only be 1.4 kms whereasthe respondent no.1 wants to overlap by 13 kms, i.e.Eapproximately 50% of his route, which is totally impermissibleand the same is rightly objected to by the STU, particularly whenthe STU is operating 452 buses (amounting to 770 trips) in a dayon the said route. [Paras 19, 20] [763-E-H; 764-B-D]

1.5 The Scheme is a law by itself and until it is varied Faccording to law, no private stage carriage operator has any rightto camouflage any device to obtain the permits. The new routeintroduced by the respondent no.1 fuses a non-notified route (toan extent of 15 kms) and a notified route (to an extent of 13kms), totally measuring 28 kms. This is contrary to the approvedScheme, since such newly introduced route by the respondentGNo.1 overlaps with 13 kms of the notified route, which is prohibitedas per the Scheme. The RTA was justified in rejecting the claimof the respondent no.1 seeking temporary permit on the notifiedroute, since the respondent no.1 has sought a temporary permit H

for the route which overlaps by 13 kms on the notified route;such overlap is clearly prohibited under the Scheme.[Paras 25-27] 768-B-C, E-F]

1.6 Moreover, overlapping to the extent of 5 kms or 5%of the route of respondent no.1 (whichever is less), is only forpurposes of intersection under the Scheme. The intersection ofthe notified route may not be the same as traversing andoverlapping with the route, because the prohibition under theScheme must apply to the whole or a part of the notified route,and private stage carriage operators cannot be allowed to traversethe same line in the guise of intersection. In this case, as thestage carriage services of the respondent no.1 are to operate ona notified route to an extent of 13 kms, it cannot be consideredan intersection. Intersection means “to cut across”. It ispermissible for any private stage carriage operator, under theScheme in question, to traverse on a notified route up to thepermissible limit as contemplated under the Scheme only for thepurpose of cutting across the notified route, and to proceed furtheron a non-notified route. Only in such a case can the temporarypermit be granted. [Para 28] [768-G-H; 769-A-C]

1.7 There is a clear distinction between overlapping andintersection. The expression “intersection” is not defined in theAct. The meaning of the word “intersection” as provided generallyin various dictionaries is “cutting across”. The word has to beconstrued in the context of the provision of the Act and schemeof the Act. The “Scheme” intends total exclusion of private stagecarriage operators for a notified route except for “intersecting”it is not open for the authorities to grant permits to private stagecarriage operators to operate on the notified route but may bepermitted merely to intersect within permissible limits. The“intersection” thus, is not traversing the same line of travelbeyond permitted limits, but to cut across a notified route for itsonward journey. This exception is carved out only to avoidhardships to travellers. Any other view contrary to the aboveview would amount to violating integrity of an approved Scheme.An intersection is permissible, while an overlap is not.[Para 29] [769-D; 770-B-D]

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A 1.8 Except for exceptional circumstance of cutting acrossthe notified route, the scheme totally excludes private stagecarriage operators on the notified route. In case of overlapping,such carrier would ply on the same line to travel on a portion ofthe notified route, whereas in case of intersection, the privatestage carriage operator’s route only cuts across the notified routeBfor its onward journey. Since the scheme is a law, the same has tobe preserved and protected in public interest. Since it is not acase of intersection as contemplated under Clause 5(c) of theScheme, and as the overlapping sought by the respondent no.1is more than both 5 kms or 5% of his total route, the prayer ofCrespondent no.1 must be rejected. However, Clauses 5(c) and 6of the Scheme provide that the private stage carriages would beallowed to pick up and drop passengers in between any two placeson the route covered by the Scheme, provided that the route ofthe private stage carriage overlaps the notified route maximumto an extent of 5 kms or 5% of the length of its own routeD(whichever is less). [Paras 30, 31] [771-D-F]

1.9 The respondent no. 1 does not fall within the provisoto Section 104 of the Act. Both parties admit that the appellant isrunning sufficient number of buses on the notified route. Since itis found that the Respondent no.1 is not entitled to ply stageEcarriage buses on the notified routes, the temporary permitgranted by the RTA on 23.02.2017, consequent to the order ofthe STAT remanding the matter to the RTA, in favour ofrespondent no.1 is set aside. [Paras 32, 36] [771-G-H; 774-C]

1.10 In view of this discussion, the following answerFemerges:

1.10 In view of this discussion, the following answerFemerges:

(i) A temporary permit cannot be issued to a private stagecarriage operator to traverse on the notified route which is beingserved by the STU, in excess of the permissible distance providedunder the scheme.G

(ii) Under the facts of this case, it is not open for a privatestage carriage operator (the respondent no.1) to operate itsservices by overlapping on a notified route for more than 5 kmsor 5% (whichever is less) of the route of the private stage carriageoperator (as specified under the Scheme) which is being servedHby the STU. [Para 37] [774-C-E]

KERALA STATE ROAD TRANSPORT CORPORATION v.BABY P. P. & ORS.

Punjab Roadways v. Punjab Sahib Bus & TransportCo. (2010) 5 SCC 235 : [2010] 5 SCR 256 –distinguished.

Adarsh Travels Bus Service & Anr. v. State of U.P. &Ors. (1985) 4 SCC 557– followed.

Gajraj Singh & Ors. v. State Transport AppellateTribunal and Ors. (1997) 1 SCC 650 : [1996] 6 Suppl.SCR 172 ; Dwarka Prasad v. Dwarka Das Saraf(1976) 1 SCC 128 : [1976] 1 SCR 277 ; U.P. StateRoadways Transport Corporation v. Anwar Ahmed &Ors. (1997) 3 SCC 191 : [1996] 7 Suppl. SCR 98 ;Mysore State Road Transport Corporation v. MysoreState Transport Appellate Tribunal (1974) 2 SCC 750 :[1975] 1 SCR 615 ; Karnataka SRTC v. AshrafullaKhan (2002) 2 SCC 560 : [2002] 1 SCR 194 ; U.P.SRTC and Another v. Sanjida Bano and Others(2005) 10 SCC 280 – relied on.

Black’s Dictionary of Law, 5th Edn. ; Law Lexicon,Reprint Edn., 1987; Chambers English Dictionary;Webster’s Dictionary, Vol. I ; Shorter Oxford EnglishDictionary, Vol. I ; Concise Oxford Dictionary– referred to.

(1985) 4 SCC 557 followed[1996] 6 Suppl. SCR 172 relied on[1976] 1 SCR 277 relied on[1996] 7 Suppl. SCR 98 relied on[1975] 1 SCR 615 relied on[2002] 1 SCR 194 relied on(2005) 10 SCC 280 relied on[2010] 5 SCR 256

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 5257of 2018.

From the Judgment and Order dated 02.08.2017 of the High Courtof Kerala at Ernakulam in OPC No. 1827 of 2017

WITH

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Civil Appeal Nos.5258 and 5259 of 2018.

V. Giri, Sr. Adv., Deepak Prakash, Yanmi Phazang, Sree Devi,Subhash Chandran K.R, Raneev Dahiya, Kunal Singh, Sriram P.,Nachiketa Vajpayee, Amith Krishnan, Advs. for the Appellant.

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R. Basant, Sr. Adv., Santosh Krishnan, K. V. G. Nair, Nishe RajenShonker, Ms. Anu K. Joy, Alim Anvar, Reegan S. Bel, Advs. for theRespondents.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J. Leave granted.D

2. These appeals arise out of the judgment dated 02.08.2017 passedby the High Court of Kerala at Ernakulam in O.P.(C) No. 1827 of 2017,O.P.(C) No. 1784 of 2017 and O.P.(C) No. 581 of 2017 dismissing thewrit petitions and consequently confirming the order dated 11.01.2017passed by respondent no.5 herein, the State Transport Appellate TribunalE(hereinafter referred to as ‘STAT’) in M.V.A.R.P No. 53 of 2016.Therein, the STAT had held that the Regional Transport Authority underthe facts of the case, may exercise power conferred on it by the provisoto Section 104 of the Motor Vehicles Act, 1988 (hereinafter referred toas ‘the Act’) to grant temporary permits.F

3. The State of Kerala vide G.O. (P) No.42/2009/Tran. dated14.07.2009 notified a new scheme in exercise of its powers conferredby Section 100 of the Act for the purpose of providing convenient,adequate, economical, and properly coordinated passenger road transportservices. As per the said Scheme, the route of Kottayam-KozhikodeGwas made a notified route. Clause 4 of the said Scheme interalia providesthat the services to be operated by the State Transport Undertaking(hereinafter referred to as ‘STU’) along the notified route were to theexclusion of private stage carriages operating in the said route. Clause 4of the said Scheme reads thus:

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KERALA STATE ROAD TRANSPORT CORPORATION v.BABY P. P. & ORS. [MOHAN M. SHANTANAGOUDAR, J.]

A“4.Whether the services are to Yes, the permitsissued in the be operated by the State private sector on or before Transport Undertaking to 9.5.2006 will be allowed to the exclusion of other continue till the dates of expiry of persons or otherwise. the respective permits. Thereafter regular permits will be granted to them. When the State Transport BUndertaking applies for introducing new services in the above routes, corresponding number of existing private stage carriage permits in the said routes whose permits expire first after filing application by the State CTransport Undertaking shall not be renewed. As regards permits issued after 09.05.2006 temporary permits alone shall be issued afresh on expiry in these routes or any portion thereof till such time the State Transport Undertaking replaces with new services. The Ddecision of the State Transport Undertaking to apply for permits to replace the existing Stage C arriages as above shall be taken by the Chief Executive of the State Transport Undertaking.” E

4. From the aforementioned clause, it is clear that the permitswhich were already issued to the private sector prior to 09.05.2006 willbe allowed to continue until the date of expiry of the respective permits.Thereafter, regular permits will be granted to them. However, as andwhen the STU applies for introducing a new service on the route, thecorresponding number of existing private stage carriage permits in thesaid route, whose permits expire first after the filing of the application bythe STU, shall not be renewed. Meaning thereby, the services to beoperated by the STU along the notified route were to the exclusion ofprivate stage carriages if the STU operates on the same route. If theSTU has not applied for a permit, then the permits issued in the privatesector prior to 09.05.2006 will continue until the date of expiry, followingwhich regular permits will be granted. The temporary permits issuedafter 09.05.2006, on the notified route would be in operation, only untilthe STU operates on the same route with new services. Clauses 5(c)and 6 of the Scheme read thus:

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A“5 (c)Whether it is proposed Yes, on the portion of the to allow other services to route permitted to operate as pick up or set down in clause 4 above. Permits passengers between any will also be granted to two places on the route private stage carriages of covered by the scheme. other routes permitting them Bto overlap 5 kilometre or 5 percent of the length of their own routes, whichever is less on the notified routes, for purposes of intersection. 6. The maximum and As per traffic demand” minimum number or Ctrips to be provided in relation to each area or route by the State Transport Undertaking in the case of stage carriage.D

5. Clauses 5(c) and 6 of the aforementioned Scheme provide thatprivate services would be allowed to pick up and drop passengers betweenany two places on the route covered by the Scheme, if and only if theroute of the private stage carriage overlaps the notified route maximumto an extent of 5 kms or 5% of the length of its own route (whichever isEless) for purposes of intersection.

6. The appellant is a STU under Section 3 of the Road TransportCorporations Act, 1950. The respondent no.1 in SLP(C) No.26954 of2017 (namely Baby P.P contesting respondent in all these appeals), aprivate stage carriage operator, submitted an application seeking aFtemporary permit under the proviso to Section 104 of the Act beforerespondent no. 2 herein, the Regional Transport Authority (hereinafterreferred to as ‘RTA’) to run services for the route Pallissery-Angamaly-Perumbavoor. The total length of this route applied for by respondentno. 1 is 28 kms. The RTA rejected the application filed by the respondentno.1 on 22.12.2015 stating, interalia, that part of the route applied forGby the respondent no.1 from Angamaly to Perumbavoor is 13 kms inlength and it objectionably overlaps with the notified route of Kottayam-Kozhikode beyond the permissible limit as contemplated by the Schemedated 14.07.2009. As against the order of the RTA, the respondent no.1approached the STAT by filing M.V.A.R.P. No.53 of 2016 which cameHto be allowed in part on 11.01.2017, remanding the matter to the RTA to f the ate as rmits d to s of them or 5 f their er is outes, tion.

consider the matter afresh and to exercise its power conferred underthe proviso to Section 104 of the Act.

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7. Questioning the order passed by the STAT, the appellant hereinapproached the High Court by filing O.P.(C) No. 1827 of 2017.Respondent no. 1 in SLP(C) No. 32804 of 2017, a private stage carriageoperator, filed O.P.(C) No. 1784 of 2017. Respondent no. 1 in SLP (C)No. 101 of 2018, another private stage carriage operator, also filedO.P.(C) No. 581 of 2017. All these O.Ps. were heard together and cameto be dismissed on 02.08.2017 with the following observations:

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“35. Reckoning the legal principles mentioned above and thefactual situation revealed in this case, especially Ext. P8 scheme,CI find that the petitioners failed to establish a case that the 1strespondent or any other private operator is not entitled to get atemporary permit, overlapping on a notified route, by invokingproviso to Section 104 of the Act. State Transport Authority orRegional Transport Authority, as the case may be, as a temporarymeasure and until STU puts vehicles on the route, can grantDtemporary permits to cater the need of travelling public. It is thebounden duty of the STU to cater the needs of the commutingpublic and if it fails to fulfil obligations, the Government shouldintervene and pass appropriate modifications/changes in thescheme so as to provide amenities to the passengers. It is for theEGovernment and the authorities to take stock of the situationperiodically and reconsider the notification, if STU could notdischarge their obligations in the expected lines. Till then, theauthorities may invoke power conferred on them by proviso toSection 104 of the Act.

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In the result, original petitions are dismissed confirming Ext.P5order.”

8. Aggrieved by the judgment passed by the STAT, as well as thejudgment of the High Court, these appeals are presented. The issuebefore this court in these appeals is as under:

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• Can a temporary permit be granted to a private stage carriageoperator on a notified route (which is already being served by theSTU) for a distance that exceeds the permissible limit providedunder the scheme, that too not for intersecting but for merelytraversing and consequently overlapping its service on the notifiedroute?

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AIn other words,

• Under the facts of this case, is it open for a private stage carriageoperator (Respondent No.1) to operate the services overlappingmore than 5 kms or 5% of the route of the private stage carriageoperator (as specified under the Scheme) for the purpose ofBtraversing by overlapping on the notified route which is being servedby the STU, but not for purposes of intersection?

9. Mr. V. Giri, learned Senior Advocate appearing on behalf ofthe appellant contended that no person other than the STU can operateon the notified route except as provided in the Scheme; the proviso toCSection 104 of the Act is also subject to the Scheme; Clause 5(c) of theScheme makes it clear that respondent no.1’s route objectionably overlapswith the notified route far beyond the permissible limit; the appellant isplying a sufficient number of buses on the notified route in question ason this day.

D10. Mr. R. Basant, learned Senior Advocate appearing on behalfof the respondent no.1 submitted that the Scheme does not render theproviso of Section 104 of the Act otiose; temporary permits can begranted when the route is unserved or underserved by STU; the appellanthas failed to prove that it was plying sufficient number of buses on theroute Palliserry-Angamaly-Perumbavoor for which the respondent no.1Ehas a claim for temporary permit; three temporary permits were issuedeven after the scheme came into force in 2009. He further drew theattention of this Court to the fact that pursuant to the remand order ofthe STAT, the RTA on 23.02.2017 has granted a temporary permit onthe route in question in favour of the respondent no. 1. But, the appellantFwithout questioning such order passed by the RTA, has merely questionedthe order of remand passed by the STAT before the High Court. Evenbefore this Court, the order granting temporary permit is not questioned.

11. The law governing the formulation of schemes is found inSections 99 and 100 of the Motor Vehicles Act. In this context, it isGrelevant to note the observations of a Constitution Bench of this Courtin the case of Adarsh Travels Bus Service andAnr. vs. State of U.P. and Ors. reported in (1985) 4 SCC 557, where ithighlighted the power of the State to make laws on the passage of motorvehicles:

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KERALA STATE ROAD TRANSPORT CORPORATION v.BABY P. P. & ORS. [MOHAN M. SHANTANAGOUDAR, J.]

“3. The right of the members of the public to pass and repassover a highway including the right to use motor vehicles on thepublic road existed prior to the enactment of the Motor VehiclesAct and was not its creation. The State could control and regulatethe right for the purpose of ensuring the safety, peace and goodhealth of the public. As an incident of his right of passage over ahighway, a member of the public was entitled to ply motor vehiclesfor pleasure or pastime or for the purpose of trade and business,subject, of course, to permissible control and regulation by theState. Under Article 19(6)(ii) of the Constitution, the State canmake a law relating to the carrying on by the State or by acorporation, owned or controlled by the State of any particularbusiness, industry or service whether to the exclusion, completeor partial, of citizens or otherwise. The law could provide forcarrying on of a service to the total exclusion of all the citizens; itmay exclude some of the citizens only; it may do business in theentire State or a portion of the State, in a specified route or partthereof.The word “service” has been construed to be wide enoughto take in not only the general motor service, but also the speciesof motor service. There are no limitations on the State’s power tomake laws, conferring monopoly on it in respect of an area, andperson or persons to be excluded.All this is now well establishedby the various decisions of this Court.”

12. Chapter V of the Act deals with the control of transport vehicleswhereas Chapter VI of the Act deals with special provisions relating toSTUs. As per Section 98 of the Act, the provisions of Chapter VI andthe rules and orders made thereunder shall have overriding effect,notwithstanding any inconsistency contained in Chapter V or any otherlaw for the time being in force. Preparation and publication of proposalsregarding road transport services of the STU has been dealt with underSection 99 of the Act. If the State Government is of the opinion that forthe purpose of providing efficient, adequate, economical, and properlyguaranteed road transport services in relation to any area or route oroperation thereto, these road transport services should be run and operatedby the STU to the exclusion (complete or partial) of private stage carriageoperators, a proposal in the Official Gazette shall be published as providedunder Section 99 of the Act. Objections to the proposal will be invited ABCDE

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Abefore the State Government under Section 100(1) of the Act. Afterconsidering the objections, if any, and after giving an opportunity to theobjectors or their representatives and the representatives of the STU,the State Government may approve or modify such proposals. Theapproved or modified scheme will be published in the Official Gazette ofthe State Government, apart from newspapers, under Section 100(3) ofBthe Act. After publication, the scheme shall be final and the same iscalled “the approved scheme”. The area or the route, to which the schemerelates, shall be called “Notified Area” or “Notified Route”. Section 103of the Act deals with the issue of permits by the STU pursuant to thescheme, if approved. Section 104 of the Act relates to the restrictions onCgrant of permits in respect of the notified area or notified route.

13. It is relevant to note that Chapter IV of the Motor VehiclesAct, 1939 is analogous to Chapter V of the Motor Vehicles Act, 1988.Chapter IV-A of the 1939 Act corresponds to Chapter VI of the 1988Act. The sections contained in Chapter IV-A of the1939 Act are in pariDmateria with the sections contained in Chapter VI of the 1988 Act. Tobe more precise, Sections 99 and 100 of the 1988 Act are in pari materiawith Sections 68-C and 68-D respectively of the 1939 Act.

14. Before proceeding further, it would be relevant to note Section104 of the Act along with its proviso, which reads thus:

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“104. Restriction on grant of permits in respect of a notifiedarea or notified route – Where a scheme has been publishedunder sub-section (3) of section 100 in respect of any notifiedarea or notified route, the State Transport Authority or the RegionalTransport Authority, as the case may be, shall not grant any permitexcept in accordance with the provisions of the scheme:

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Provided that where no application for a permit has been madeby the State Transport Undertaking in respect of any notified areaor notified route in pursuance of an approved scheme, the StateTransport Authority or the Regional Transport Authority, as theGcase may be, may grant temporary permits to any person in respectof such notified area or notified route subject to the condition thatsuch permit shall cease to be effective on the issue of apermit to the State transport undertaking in respect of thatarea or route.”

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15. A plain reading of Section 104 makes it amply clear that wherea scheme has been published under Section 100(3) of the Act in respectof any notified area or notified route, grant of any permit on the notifiedroute or area is impermissible, except in accordance with the provisionsof the scheme. However, the proviso clarifies that wherever the STUhas not sought any permit in respect of any notified route or notifiedarea in pursuance to the scheme, the RTA (or STA, as the case may be)may grant a temporary permit to any private stage carriage operator inrespect of such notified area or notified route, on the condition that suchpermit shall cease to be effective on the issue of a permit to the STU inrespect of that area or route. It is needless to observe that respondentno.1 claims such a temporary permit based on the proviso to Section 104of the Act, contending that the STU is not operating its services on thenotified route.

16. It is by now well settled that the scheme formulated andpublished by the State Government under Section 100 (3) of the Actholds the fort in all matters involving permits.The scheme is a law byitself, as observed by this Court in various judgments including the caseof Gajraj Singh and Others vs. State Transport Appellate Tribunaland others reported in (1997) 1 SCC 650, wherein it is observed ashereunder:

“51. After giving careful and anxious consideration to the respectivecontentions, we find that there is some force in the contention ofthe respective counsel for the appellants. It bears repetition tostate that the approved scheme under the Repealed Act or in theAct is a self-contained and self-operative scheme. It is a law byitself. The schemes published under the Repealed Act, as heldearlier, are saved by Section 217(2)(a) of the Act. Therefore,until they are modified or cancelled under Section 102, the schemeshould continue to be in operation in the notified area, route orpart thereof. The right to apply for and obtain permit in the notifiedscheme was totally frozen to the private operators giving exclusiveright to the STU to apply for and obtain permits to run the stagecarriages or additional service under Section 101 of the Act onthe notified area, route or a part thereof and none else. With a nonobstante clause in Section 101, the right to apply for and obtaintemporary permits under Section 87 by private operators was taken ABC

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Aaway. There is no need for STU to obtain such permits as anintimation to RTA concerned of its providing such additional serviceon special occasions like fair or religious gatherings for conveyanceof passengers, is sufficient. Yet the scheme itself saved andpreserved the rights of the named existing operators in respect ofoverlapping routes in the specified permits, subject to the corridorBrestrictions of picking up and setting down the passengers en routethe prescribed prohibited route. They became entitled to run theirstage carriages subject to the law. Though, their permits are saved,the named operators being private operators, Parliament appearsto have thought that there was no necessity to expressly retain inCChapter VI itself their right of renewal as the same was alreadyprovided in Section 81 of the Act corresponding to Section 68-F(1-D) of Chapter IV-A of the Repealed Act. The reason appearsto be obvious. Every private operator falls within the field coveredby Chapter V of the Act. It would seem that Parliament is of theview that the named operators, being saved under the schemes,Dare entitled to apply for and obtain necessary permit or renewalthereof to ply their stage carriages only on overlapped routessubject to the corridor restrictions mentioned in the scheme itself.It may be stated that we do not find any express indication oftheir rights being taken away under the Act; nor do we find it byEnecessary implication in that behalf and to that effect. This viewdoes justice also to all concerned.”

17. In light of this, it is to be noted that the proviso to Section 104of the Act cannot be read aloof from the main section. A plain reading ofFthe proviso to Section 104 makes it clear that temporary permits can begranted to the private sector, wherever the STU does not operate itsservice. However, the proviso is also subject to the stipulations of thescheme, akin to the main section. A Four-Judge Bench of this Court inDwarka Prasad vs. Dwarka Das Saraf, reported in (1976) 1 SCC128, observed that the proviso cannot be read separately from the mainGsection, in the following manner:

“18.…A proviso must be limited to the subject-matter of theenacting clause. It is a settled rule of construction that a provisomust prima facie be read and considered in relation to the principalmatter to which it is a proviso. It is not a separate or independentHenactment. “Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read asdivorced from their context” (1912 AC 544). If the rule ofconstruction is that prima facie a proviso should be limited in itsoperation to the subject-matter of the enacting clause, the standwe have taken is sound. To expand the enacting clause, inflatedby the proviso, sins against the fundamental rule of constructionthat a proviso must be considered in relation to the principal matterto which it stands as a proviso. A proviso ordinarily is but a proviso,although the golden rule is to read the whole section, inclusive ofthe proviso, in such manner that they mutually throw light on eachother and result in a harmonious construction.”

18. Since the Scheme on hand partially excludes private stagecarriage operators on the notified route, the same is to be adhered to. Itis necessary in the public interest that road transport services on notifiedroutes should be run and operated by the STU to the complete or partialexclusions of private stage carriage operators. In a State where thescheme has been published, subject to such scheme formulated by theState, no private stage carriage operator can operate beyond thestipulations of the scheme. This also applies to applications for temporarypermits under the proviso to Section 104 of the Act.

19. In the matter on hand, it is the case of the STU that it hasbeen running 452 buses (covering 770 trips) every day on part of thenotified route, i.e. from Angamaly to Perumbavoor, wherein overlappingof 13 kms is claimed. So far as the route from Angamaly to Perumbavooris concerned, the same is undisputedly a notified route. The STU thushas the exclusive right or monopoly to ply its stage carriages and obtainthe required permit as per the Scheme to the exclusion of private stagecarriage operators. The proviso gives only a limited breath of life to theprivate sector, viz., only if the vehicles of the STU do not operate on thenotified route as per the scheme, in which event temporary permits maybe granted to the private stage carriage operators. In the matter onhand, undisputedly, more than 450 buses of the STU ply everyday on thenotified route which pass from Angamaly to Perumbavoor. It is not openfor the respondent no.1 to claim that the STU is not running sufficientbuses from Palliserry to Perumbavoor via Angamaly. Admittedly,Palliserry to Angamaly is not a notified route. The dispute between theparties, thus, virtually relates to the route between Angamaly toPerumbavoor and not the route between Palliserry to Angamaly.

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A20. Even otherwise it is not disputed that the STU is plying 8 tripsfrom Palliserry to Perumbavoor via Angamaly. Apart from the same,the private sector is operating sufficient number of services fromPalliserry to Angamaly. It is brought to the notice of this Court by theSTU that the STU may provide more buses if required between Palliserryto Angamaly. Moreover, it is open for the respondent no.1 to seekBpermission as per law before the concerned authority and ply its buseson the non-notified route. However, when it comes to operating on thenotified route, that is, in between Angamaly and Perumbavoor, therespondent no.1 cannot operate its services for more than 5 kms or 5%of its route (whichever is less). Admittedly, part of the respondent no.1’sCroute measuring 13 kms is between Angamaly and Perumbavoor, andthat entire patch of 13 kms overlaps the notified route. The total routelength applied for by the respondent no.1 is only 28 kms. The overlapthus, permitted on the notified route (in the case on hand) as per theScheme could only be 1.4 kms whereas the respondent no.1 wants tooverlap by 13 kms, i.e. approximately 50% of his route, which is totallyDimpermissible and the same is rightly objected to by the STU, particularlywhen the STU is operating 452 buses (amounting to 770 trips) in a dayon the said route.

21. The contention of the respondent no.1 is that the travellingEpublic could be inconvenienced if the passengers travelling in the busesof the respondent no.1 from Palliserry to Perumbavoor are asked to getdown at Angamaly. Such factors relating to inconvenience etc.necessarily have to be taken into consideration by the concernedauthorities before publication of the proposal regarding road transportservices of the STU under Section 99 of the Act, by the State GovernmentFunder Section 100(1) of the Act when considering the objections to thescheme, and thereafter either by the STU or by the Government wheninconvenience is experienced by the travelling public and brought to itsnotice. As held by the Constitution Bench of this Court in case ofAdarsh (supra), the question is one of weighing the balancebetween the advantages conferred on the public by the nationalisationGof the route Kottayam-Kozhikode against the inconvenience sufferedby the public by wanting to travel straight from Palliserry to Perumbavoorvia Angamaly.

22. It is quite well known that under the guise of permits overlonger routes covering shorter notified routes, or overlapping parts ofnotified routes, such permits are more often than not mis-utilized, since itis well nigh impossible to keep a proper check at every point of theroute. If indeed there is any need for protecting the travelling publicfrom inconvenience, as was submitted by Mr. Giri, the STU and theGovernment will make sufficient provisions in the Scheme itself to avoidinconvenience being caused to the travelling public. In Adarsh (supra)under similar circumstances, it was observed thus, “7.…The question is one of weighing in the balance the advantagesconferred on the public by the nationalisation of the route C-Dagainst the inconveniences suffered by the public wanting to travelstraight from A to B. On the other hand it is quite well known thatunder the guise of the so-called “corridor restrictions” permitsover longer routes which cover shorter notified routes or“overlapping” parts of notified routes are more often than notmisutilised since it is well nigh impossible to keep a proper checkat every point of the route. It is also well known that often timespermits for plying stage carriages from a point a short distancebeyond one terminus to a point a short distance beyond anotherterminus of a notified route have been applied for and grantedsubject to the so-called “corridor restrictions” which are but mereruses or traps to obtain permits and to frustrate the scheme. Ifindeed there is any need for protecting the travelling public frominconvenience as suggested by the learned counsel we have nodoubt that the State Transport Undertaking and the Governmentwill make a sufficient provision in the scheme itself to avoidinconvenience being caused to the travelling public.”

“14.…We however wish to introduce a note of caution. Whenpreparing and publishing the scheme under Section 68-C andapproving or modifying the scheme under Section 68-D care mustbe taken to protect, as far as possible, the interest of the travellingpublic who could in the past travel from one point to another withouthaving to change from one service to another en route.This canalways be done by appropriate clauses exempting operatorsalready having permits over common sector from the scheme AB

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and by incorporating appropriate conditional clauses in the schemeto enable them to ply their vehicles over common sectors withoutpicking up or setting down passengers on the common sectors. Ifsuch a course is not feasible the State Legislature may interveneand provide some other alternative as was done by the UttarPradesh Legislature by the enactment of the Uttar Pradesh Act27 of 1976 by Section 5 of which the competent authority couldauthorise the holder of a permit of a stage carriage to ply hisstage carriage on a portion of a notified route subject to terms andconditions including payment of licence fee. There may be othermethods of not inconveniencing through passengers but that isentirely a matter for the State Legislature, the State Governmentand the State Transport Undertaking. But we do wish to emphasisethat good and sufficient care must be taken to see that the travellingpublic is not to be needlessly inconvenienced.”

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D23. In the case of U.P. State Roadways Transport Corporationvs. Anwar Ahmed and Others reported in (1997) 3 SCC 191, this Courtobserved thus:

“6. In view of the settled legal position that once the schemehas been approved and notified, right to ply stage carriages byEprivate operators on the notified area, routes or portions thereof istotally frozen. Therefore, they have no right to claim any grant ofstage carriage, temporary or contract carriage permits thereunderon the said notified area, routes or portions thereof except to theextent saved by the scheme with restrictions imposedthereunder…”F

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“7. It would, therefore, be seen that where the scheme has beenpublished under sub-section (3) of Section 100 in respect of anynotified area or notified route, the State Transport Authority orthe Regional Transport Authority, as the case may be, shall notgrant any permit except in accordance with the provisions of thescheme. Thus, the appellant-Corporation has the exclusive rightor monopoly to ply their stage carriages and obtain the requiredpermit as per the scheme. The proviso gives only a limited breathof life, namely, until the Corporation puts the vehicles on the notifiedroutes as per the scheme, temporary permits may be granted to G

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private operators. Thereby, it would be clear that temporaryinconvenience to travelling public is sought to be averted till thepermits are taken and vehicles are put on the route by the appellant.Therefore, the temporary permits will have only limited breath oflife. Private operators are attempting to wear the mask ofinconvenience to travelling public to infiltrate into forbidden notifiedarea, route or portion thereof to sabotage the scheme.The permitswere taken by the appellant and the vehicles are put on the routein terms of the scheme. Therefore, the direction given by theHigh Court at the pain of contempt is obviously illegal. It is statedby Shri V.R. Reddy, Additional Solicitor General, on instructionthat the appellant is prepared to take all the permits required onthe routes.

8. But the crucial question is whether a new route can beintroduced by fusing two notified routes and temporary permitssought to be obtained on carved-out route? This device is obviouslyimpermissible to enter into frozen area or route or portion thereofthrough backdoor. The scheme is law by itself and until it is variedaccording to law, no private operator has any right to camouflageany device to obtain temporary permits. Under thesecircumstances, action taken by the respondents to obtain temporarypermits is obviously ultra vires and authorities have no jurisdictionto grant such permits. The altered or modified routes are contraryto the approved scheme, since they have been occupied by twonotified routes and to be operated as per the scheme.”

24. From the aforementioned, it is clear that the temporaryinconvenience, if any, to the travelling public was to be avoided till thepermits were taken by the appellant and vehicles were made to ply onthe route by it. Since the appellant is running sufficient number of buses/trips on the notified route, no inconvenience to the public is made out.Private stage carriage operators generally would be attempting to weara mask to infiltrate into forbidden routes or areas or portions thereof,under the pretext of inconvenience to the travelling public, to sabotagethe scheme.

25. The STAT impliedly interpreted the proviso to Section 104 ofthe Act to mean that the competent authority would have the power to AB

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Agrant a temporary permit de hors the scheme. Such interpretationdeserves to be rejected, i.e., the interpretation that until the STU putsvehicles on the newly carved out route fusing non-notified and notifiedroute, temporary permits may be granted to private stage carriageoperators. A new route cannot be introduced by fusing a non-notifiedroute with the notified route to seek a temporary permit on a carved outBroute. This device is obviously impermissible to enter into a frozen areaor route or portion thereof, in excess of the limited permit under thescheme, through a back door. The Scheme is a law by itself and until itis varied according to law, no private stage carriage operator has anyright to camouflage any device to obtain the permits. The new routeCintroduced by the respondent no.1 fuses a non-notified route (to an extentof 15 kms) and a notified route (to an extent of 13 kms), totally measuring28 kms. This is contrary to the approved Scheme, since such newlyintroduced route by the respondent No.1 overlaps with 13 kms of thenotified route, which is prohibited as per the Scheme. There cannot beany dispute that there will not be any scope for grant of any permit inDthat area or route covered by the Scheme, except what is specificallypermitted or provided under the Scheme itself.

26. In the matter on hand, the Scheme does not permit privatestage carriage operators to overlap more than 5 kms or 5% (whicheveris less) of the route proposed by the private stage carriage operator, andEas the respondent no. 1 wants to run services overlapping by 13 kms, theprayer is liable to be rejected.

27. Thus, the RTA was justified in rejecting the claim of therespondent no.1 seeking temporary permit on the notified route, sincethe respondent no.1 has sought a temporary permit for the route whichFoverlaps by 13 kms on the notified route; such overlap is clearly prohibitedunder the Scheme. Since the STU is running hundreds of bus trips onthe part of the notified route i.e. from Angamaly to Perumbavoor, it isnot open for the respondent no.1 to seek a temporary permit coveringthat distance.G

28. Moreover, overlapping to the extent of 5 kms or 5% of theroute of respondent no.1 (whichever is less), is only for purposes ofintersection under the Scheme. As the proviso to Section 104 of the Actis also subject to the Scheme, it is not open for any private stage carriageoperator including the respondent no.1 to claim a temporary permit for H

traversing and overlapping with the notified route to the extent of 13kms. The intersection of the notified route may not, in our view, be thesame as traversing and overlapping with the route, because the prohibitionunder the Scheme must apply to the whole or a part of the notified route,and private stage carriage operators cannot be allowed to traverse thesame line in the guise of intersection. In this case, as the stage carriageservices of the respondent no.1 are to operate on a notified route to anextent of 13 kms, it cannot be considered an intersection. Intersectionmeans “to cut across”. It is permissible for any private stage carriageoperator, under the Scheme in question, to traverse on a notified routeup to the permissible limit as contemplated under the Scheme only forthe purpose of cutting across the notified route, and to proceed furtheron a non-notified route. Only in such a case can the temporary permit begranted.

29. There is a clear distinction between overlapping andintersection. The expression “intersection” is not defined in the Act.Hence, in order to understand this distinction, the dictionary meaning of the expression “intersection” deserves close scrutiny.

In Black’s Dictionary of Law, 5th edn., the word “intersection”means: as applied to a street or highway means the space occupied bytwo streets at the point where they cross each other. Space common toboth streets or highways, formed by continuing the curb lines.

In the Law Lexicon, Reprint edn., 1987 “intersect” means as “tocross; literally, to cut into or between; a word which imports theintersection of one line with another”.

In Chambers English Dictionary, “intersection” means to cutacross: to cut or cross mutually; to divide into parts, v.i. to cross eachother; intersect appoint of intersection; intersection intersecting: thepoint or line in which lines or surfaces cut each other (geom.): the set ofelements which two or more sets have in common (math.): a crossroad.

In Webster’s Dictionary, Vol. I, the word “intersection” is: as theact of intersecting the point at which lines cut across each other (or theline at which planes do so), a place where two roads cross each otherintersectional.

The Shorter Oxford English Dictionary, Vol. I defines“intersection” as the action or fact of intersection; the place where two A

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Athings intersect; chiefly geom.; the point (or line) common to two lines orsurfaces which intersect.

The Concise Oxford dictionary defines: Intersect means,Divide by passing or lying across it; cross or cut each other.

A reading of the dictionary meanings thus, shows more than oneBmeaning for the word “intersection”. But, it can be said that, meaning ofthe word “intersection” as provided generally in various dictionariesmentioned supra, is “cutting across”. However, in such a situation itwould be appropriate to keep in mind that the word has to be construedin the context of the provision of the Act and scheme of the Act. As weCfind that the “Scheme” intends total exclusion of private stage carriageoperators for a notified route except for “intersecting” it is not open forthe authorities to grant permits to private stage carriage operators tooperate on the notified route but may be permitted merely to intersectwithin permissible limits. The “intersection” thus, is not traversing thesame line of travel beyond permitted limits, but to cut across a notifiedDroute for its onward journey. This exception is carved out only to avoidhardships to travellers. Any other view contrary to the above viewwould amount to violating integrity of an approved Scheme.

An intersection is permissible, while an overlap is not. In MysoreState Road Transport Corporation vs. Mysore State TransportEAppellate Tribunal, reported in (1974) 2 SCC 750, this Court held asfollows:

“10. ... It is, therefore, apparent that where a private transportowner makes an application to operate on a route which overlapseven a portion of the notified route i.e. where the part of theFhighway to be used by the private transport owner traverses on aline on the same highway on the notified route, then that applicationhas to be considered only in the light of the scheme as notified. Ifany conditions are placed then those conditions have to be fulfilledand if there is a total prohibition then the application must beGrejected.”

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“12. This Court has consistently taken the view that if there is aprohibition to operate on a notified route or routes no licences canbe granted to any private operator whole route traversed or H

overlapped any part or whole of that notified route. The intersectionof the notified route may not, in our view, amount to traversing oroverlapping the route because the prohibition imposed applies to awhole or a part of the route on the highway on the same line ofthe route. An intersection cannot be said to be traversing the sameline, as it cuts across it.”

30. The expression “intersection”as observed by this Court in thecase Karnataka SRTC vs. Ashrafulla Khan reported in (2002) 2 SCC560, has been employed only to provide a facility to private stage carriageoperators operating on a non-notified route to continue their onwardjourney on a non-notified route by cutting across the notified route to theextent permitted under the scheme. This exception is carried out onlywith the avowed object of avoiding hardship to the travelling public.Except for such exceptional circumstance of cutting across the notifiedroute, the scheme totally excludes private stage carriage operators onthe notified route. In case of overlapping, such carrier would ply on thesame line to travel on a portion of the notified route, whereas in case ofintersection,the private stage carriage operator’s route only cuts acrossthe notified route for its onward journey. Since the scheme is a law, thesame has to be preserved and protected in public interest.

31. Since it is not a case of intersection as contemplated underClause 5(c) of the Scheme, and as the overlapping sought by therespondent no.1 is more than both 5 kms or 5% of his total route, theprayer of respondent no.1 must be rejected. However, we hasten to addthat (as mentioned supra) Clauses 5(c) and 6 of the Scheme providethat the private stage carriages would be allowed to pick up and droppassengers in between any two places on the route covered by theScheme, provided that the route of the private stage carriage overlapsthe notified route maximum to an extent of 5 kms or 5% of the length ofits own route (whichever is less).

32. At the cost of repetition, we must observe that the respondentno. 1 does not fall within the proviso to Section 104 of the Act. Theappellant has been plying sufficient number of buses/trips on the notifiedroute as a STU. Both parties admit that the appellant is running sufficientnumber of buses on the notified route. It was held by this Court in U.P.SRTC and another vs. Sanjida Bano and others, reported in (2005)

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A10 SCC 280, that irrespective of the number of buses and trips undertakenby the STU, the fact that it is plying its vehicles on the notified routeprecludes others from taking the benefit of the proviso to Section 104 ofthe Act. The Court held thus:

“5.…Whether or not the number of buses and the trips operatedBby the State transport undertaking were enough to cater to thevolume of need of the commuting public, is not germane to theapplicability of the proviso.The scheme provides for as manypermits as needed being lifted by the State transport undertaking.The State transport undertaking was operating 36 trips on thedate of the order of the High Court and is now operating 40 trips,Cas stated by the learned counsel for the appellants at the Bar.However, the learned Senior Counsel for the respondents hasdisputed the correctness of this statement and submitted that theSecretary, Regional Transport Authority had found only 25 tripsbeing in operation. Be that as it may, we are not inclined to holdDthat in spite of the appellant Corporation operating on the routeresort can be had to the proviso to Section 104 of the Act forgranting temporary permits.”

33. Strangely, the Respondent No.1 sought to produce certainEdocuments before the Court, just about two days prior to the finalarguments. Such documents contained so called three temporary permitsgranted in favour of three private stage carriage operators on the notifiedroute subsequent to the scheme. Relying upon such documents, Mr.Basant argued that same concession as has been given to three private

Fstage carriage operators should be given in favour of the respondentno.1 also. These submissions are rightly objected by Mr. Giri taking anexception to the manner in which these documents were sought to beproduced two days prior to the final arguments; these documents werenot available on the record before the High Court or before the STAT.Since opportunity was not available to the appellant to have its say onGthe documents, he submitted that the said documents need to be ignored.

It is not clear from any of the record that such temporary permitswere granted and even if granted whether they have expired or not.Even otherwise there was no opportunity for the appellant to have itssay on alleged permits. Hence, we do not propose to consider andHcomment upon such documents produced by the contesting respondent.

KERALA STATE ROAD TRANSPORT CORPORATION v.BABY P. P. & ORS. [MOHAN M. SHANTANAGOUDAR, J.]

34. Mr. R. Basant relied heavily on Punjab Roadways vs. PunjabSahib Bus & Transport Co., reported in (2010) 5 SCC 235, to make aclaim that temporary permits may be granted even when the STU hasapplied for a permit. In that case, this Court held as under:

“34. The abovementioned provision states where a scheme hasbeen published under sub-section (3) of Section 100 in respect ofany notified area or notified route, the STA or the RTA as thecase may be, shall not grant any permit except in accordancewith the provisions of the scheme. An exception has been carvedout in the proviso to Section 104 stating, where no application forpermit has been made by the STU in respect of any notified areaor notified route in pursuance of an approved scheme, the STA orthe RTA, as the case may be, may grant temporary permits toany person in respect of any such notified area or notified routesubject to the condition that such permit shall cease to be effectiveon the issue of permit to the STU in respect of that area or route.In our view same is the situation in respect of a case where anSTU in spite of grant of permit does not operate the service orsurrenders the permit granted or is not utilising the permit. In sucha situation it should be deemed that no application for permit hasbeen made by the STU and it is open to the RTA to grant temporarypermit if there is a temporary need. By granting regular permitsto the private operators the RTA will be upsetting the ratio fixed”under the scheme which is legally impermissible.

35. Despite the strong submissions made on behalf of therespondent no. 1, it remains that Punjab Roadways (supra) isdistinguishable from the present case on facts. In that case, the schemeof the Punjab Government shared all routes on the national and Statehighways in a specified ratio between STUs and private stage carriageoperators. The relevant authorities as well as the High Court held thatregular permits may be granted to private stage carriage operators wherethe STU is not using its permit. However, this Court took exception tothe grant of “regular” permits as relief, as doing so would upset the ratiocontained in the scheme. Temporary permits would not upset the balanceand were hence preferable in a situation where the scheme mandatedthat the routes be divided and utilized in a specific ratio. In the case onhand, there is no requirement of division into specific ratios. We see noreason to apply the findings in that case to the present scenario.

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A36. The contention that the subsequent order of the RTA hasremained unquestioned, and the respondent no. 1 is therefore entitled tooperate his services on the notified route, cannot be accepted. Since theorder of the STAT remanding the matter to the RTA with a direction tothe RTA to exercise its power under the proviso to Section 104 of theAct, which was confirmed by the High Court, is held to be bad by us inBthis appeal, the consequent order of the RTA dated 23.02.2017 also needsto be held illegal. Moreover, we have heard the matter in its entirety andthe said contention of respondent no.1, in our view, is too technical. Bethat as it may, since we find that the Respondent no.1 is not entitled toply stage carriage buses on the notified routes, the temporary permitCgranted by the RTA on 23.02.2017 in favour of respondent no.1 is setaside.

37. In view of this discussion, the following answer emerges:

• A temporary permit cannot be issued to a private stage carriageDoperator to traverse on the notified route which is being served bythe STU, in excess of the permissible distance provided under thescheme.

• To rephrase, under the facts of this case, it is not open for aprivate stage carriage operator (the respondent no. 1) to operateEits services by overlapping on a notified route for more than 5 kmsor 5% (whichever is less) of the route of the private stage carriageoperator (as specified under the Scheme) which is being servedby the STU.

38. Accordingly, the judgment of STAT, the consequent order ofFthe RTA granting temporary permit to the respondent no. 1, as well asthe judgment of the High Court, are set aside. The appeals before us arehereby allowed. Consequently, O.P.(C) No. 1827 of 2017, as preferredby the appellant KSRTC, stands allowed. As regards the O.P.(C)No. 1784 of 2017 and O.P.(C) No. 581 of 2017, the same order shallgovern their outcome.G

Divya Pandey

Appeals allowed.

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