MYSORE STATE ROAD TRANSPORT CORPORATION versus MYSORE STATE TRANSPORT APPELLATE TRIBUNAL

GHi

MYSORE STATE ROAD TRANSPORT CORPORATION v . MYSORE STATE TRANSPORT APPELLATE TRIBUNAL August 8, 1974

[P. JAGANMOHAN REDDY, M. H. BEG AND A. ALAGIRISWAMI, JJ.]

Motor Yehiclea Act, 1939, Chapter IY A-Scheme private operators from the notified area or route-Licence to any operator whose route traversed or overlop~li tm)' part or whole of notified route, if can be granted.

Motor Yehiclea Act, 1939, Section 2 (28-A)-Definition of "route"-"Route and highway, if can be equated-Private operator, whether can be completely exc/udei on route which overlaps even portion of notified route.

The Mysore State Road Transport Corporation opera~ on the notified routt under Ch. IV of the Motor Vehicles Act, 1939, between Hiriyur and V.V. Sagar. It objected to the renewal of permit to the third respondent for the route Hiriyur to Chitradurga and back via V. V. Sagar, Hosadurga and Janakal on the grou.ad that this renewal will authorise an overlapping over three miles on the notified route. Both the Regional Transport Authority, Chitradurga and the State TranspOit Authority, Bangalore, negatived the objection. The writ petition filed by the appellant was dismissed by the High Court of Karnataka in limine. The applica~ for the grant of certificate of fitness under Art. 133(l){c) was also rejected. appeal has been filed after obtaining special leave agamst that dismissal ordtt'.

It was contended for the appellant that the Bangalore scheme under Ch. IV-A of the Act prohibits overlapping of the route or routes of private operators on part or whole of the notified route and therefore, permit to operate bus service ovt!i/ the notified route cannot be granted to the third respondent.

Allowing the appeal, HELD :-By majority (P. Jaganmohan Reddy and A. Alagiriswami, JJ.) c• IV of the Act in specific terms provides complete and, and in the circumstance satisfactory machinery for reasonably regulating the exclusion of all or some of tke 1 private operators from the notified area or route. [618G]

Y. S. Kondala Rao arrd Ors. v. Andhra Pradesh State Road Transport CorporattiD and Ors., A.I.R. 1961 SC 82 relied on. Sasaghir Ahmed v. State of U.P. [195~ 1 S.C.R. 707 held not applicable to the scheme notified under Ch IV-A of the . Thus, this Court has consistently taken the view that if there is prohibitia. to operate on notified route or routes no licences can be granted to any operator whose route traversed or overlapped any part or whole of that notified route. Btli in My11ore State Road Transport Corporation v. The Mysore Appellate Tribunal On. (C. As. Nos. 1755-1756 of 1968 etc. decided on 17-5-1974, this Court has taken " contrary view. [622H]

S. Abdul Khader Saheb v. The Mysore Revenue Appellate TribuMl, BanKalo~ tmd Ors. [1973] 2 S.C.R. 925 Nilkanth Prasad and Or11. v. State of Bihar, (1962] SuN'-(1) S.C.R. 728, Abdul Gaffoor v. State of Mysore, [1955) 1 S.C.R. 701,Kelani Va/11. Motor Transit Co. Ltd. v. Colombo-Retnapura Omnibus Co. Ltd. [1946) A.C. 338,C .• C.-Motor Service, Myaore v. The State_ of Mysore and Another [1962] Supp. (1) S.C.R. 717, Mysore State Road Transport Corporation v. The Mysore Revenue Appe/lat• 1 Tribunal, [1965] 1 S.C.R. 841 and Mohan/al Chunnilal Kothari v. TribhoJJan Haribh6l Tamboli, [1963] 2 S.C.R. 707 referred to,

(ii) In any case under s. 2 (28A) inserted by s. 2 of Act 56 of 1969 the word "route•• ha.s been defined as meaning " line of travel which specifies the highway which rna be traversed by motor vehicle between one terminus and another". This d~ tion correla~ the notional line of travel between two termini with the ortioa of the highway ~hich has to be traversed on that ro1;1te .. It i.!, therefoco, a~areo1 that where pnvate transport owner makes an application to operate on route which overlaps even portion of the notified route, i.e. where the part of tho highway to be used by the private transport owner traverses on line on the same hi hwa on the notified route, then that application has to be considered only in the li~b.t J..

the scheme as notified. If any conditions are placed then those conditions have to be fulfilled and if there is total prohibition then the application must be rejected.

{622B-C]

Kclani Valley Motor Transit Co. Ltd. v. Colombo-Ratnapura Omnibus Co. Ltd. [1946] A. C. 338, }~ J. Kodala Rao and Ors. v. Andhra Pradesh State Road Transport Corporatiorr and Ors., AIR [1961] S.C. 82 and NilkanthPrasad & Ors. v. State of Bihar· [1962] Supp. (1) S.C.R. 728 referred.

(iii) ln as much as Hiriyur to V.V. Sagar route granted to the third respondent overlaps the notified route Cbitradurga to Hiriyur, there can be no doubt that no permit or renewal can be granted. This is so even if it overlaps however short the distance of the route. There is no justification for holding that the integrity of the notified scheme is not affected if the overlapping is under five miles or because condition has been stipulated in the permit that the operators will not pick up or set down any passengers on the overlapped route. [625G; 626A-B] 'HELD :-Per Beg J. (dissenting)

(i) It is not correct to say that the views expressed in Mysore State Road Trans-port Corporation's cases decided on 17-5-1975 arc not reconcilable with earlier dcci-·sions. and, in particular, with Nilkallth Prasad's case. It is well-established that the ·principle of case is to be determined by taking into account the facts treated by the Judge deciding case as material and his decision 'as based thereon'. The provi· sions of Bangalore scheme disclose that there were altogether 94 routes separately numbered. Each route is identified by its termini with separate column for inter· 'mediate stations of each route. Out of these routes only 29 arc placed in class (a) ·and the rest in class (b). In class (a), one could reasonably assume complete ex-Clusion of private operators but not in class (b) where exclusion of private op~rators from overlapping parts of routes was expressly exempted. The Bench, in its decision of 17-5-1974 was unable to relate the facts of the cases before it to prohibition of overlapping of routes. This also meant that it could not determine whether cases before the Court relating to the Bangalore scheme fell within class (a) or class (b). It also pointed out that the Mysorc Transport under-taking had the remedy for this uncertain state of affairs in its own hands if complete exclusion of private operators from every overlapping part of notified route was also intended by the framers of the scheme. It could have gone before the State \vith proposal to get the Bangalore scheme appropriately clarified and modified under sec. 68-E of the Act. Before asking the Court to infer complete exclusion, ;it was essential to show that the overlapping part involved in case falls at least under class (a) of notified routes. In as much as all the cases before the Bench were .decided on common question of law, it is very difficult to discover any flaw in the reasoning of the Division Bench decision. [629H, 632B-H]. (ii) The reasons why the bench of this Court in its judgment dated 17-5-74, did not equate the term "route'' with "road'' were two fold ; firstly, different concept ·uodet1ay each of the three schemes before the Court, including the Bangalore scheme, and the relevant rules to be observed in framing such schemes; and, secondly, the newly introduced definition constituted an amendment of or departure from the definition of 'route" found in Ni/kanlh Prasad's case (supra). Obviously, neither Nilkarrlh Prasad's case nor other cases are applicable authorities either on any question of interpretation of the provisions of the Bangalore ~Scheme or on the question whether the law giving the meaning of "route''. _There was no clear definition of the term "route". Nilkanth Prasad's case(supra) had practically identified the term route with road and contained an observation :that the "route" vested in the Undertaking. If this view was to be carried to its logical conclu'sion, the State Transport Undertaking could exclude even the user of "road by anyone for any purpose whatsoever provided it notified route which ran over it. Such consequence appeared to be quite alarming. ln any case, until 'it scheme made it clear what was really excluded, Court had to be careful not to ·exclude operators who may be serving an urgent public need without damaging the ·interests of any State Undertaking. In the definition of "route" introduced by the .amending Act 56 of 1966, there is clear distinction between "the line of travel" .between two termini, which route is, and the highway which is to be traversed by -a motor vehicle to which "route" as "line of travel'' may be assigned. The new definition was not intended to merely declare the law, which is judicial function, but to amend the law as declared by this Court in Nilkanth 'Prasad's case so as to ·bring it in line with public needs and conveniences. It answered "felt necessity", In this view of the matter it could not be urge~! that either Nilka11th Prasad's case or

MYSORE STATE ROAD TRANSPORT CORP.. V, APPELLATE 617 TRIBUNAL (Jagallmohar~ Reddy, J.)

that S. Abdul Khader Sahib's case, which do not deal with the law as the Division Bench found laid down in the amended provision would stand in the way of the view taken in the judgment of 17-5-1974. [634D-E; 637H; 638A-B; 639F; 640B]

<!ii) If the concept of r~ute is UFJderstood to mean the mere overlapping of some portwns of route, whether 1t falls m class (a) or class (b) of the routes mentioned against heading 3 of the Bangalorc Scheme, it would not debar private operator from plying on his own but different route which is not notified at ali.(642B) ·

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1801 of 1972. Appeal by Special Leave from the Judgment and Order dated the 26th November, 1968 of the Mysore High Court in Writ Petition No. 4068 of 1968.

Sh}'amla Pappu and Vineet Kumar for the appellant. of P. Jaganmohan Reddy and A. A. Alagiris\\ami, JJ.

The Judgment of P. Jaganmohan Reddy and A. A. Alagiris\\ami, JJ. was delivered by Jaganmohan Reddy, J. M. H. Beg, J. gave dissent-ing Opinion.

JAGANMOHAN REDDY, J.-The Mysore State Road Tr?.nsport Corporation, the appellant hereinafter called "the corporation" operates on the notified route under Ch. IV of the Motor Vehicles 0 Act, 1939-hereinafter referred to as ''the act"-between Hiriyur and V.V. Sagar. It objected to the renewal of permit to the third res-pondent C. Abdul Rahim for the route Hiriyur to Chitrad'urga and back via V.V. Sagar, Hosadurga and Janakal on the ground that this renewal will authorise an overlapping over three miles on the notified route. Both the Regional Transport Authority, Chitradurga and the State Transport Authority, Bangalore, negatived the objection. It may be mentioned that the ground upon which the Appellate Tribunal dismissed the appeal against the order of renewal pas~ed by the Regional Transport Authority was that in some other cases the Mysore Revenue Appellate Tribunal had held that the integrity of scheme is not impaired if the distance of the overlapping portion is aboJ.!.t five miles and if condition not to pick up or set down passengers on the notified route is attached. On this reasoning the Tribunal thought there were no grounds to interfere with the impugned order. The appellant then filed writ petition in what is now the Karnataka High Court, but it is was dismissed by Division Bench in limine. This appeal is by special leave against that dismissal order.

It appears that the passenger transport services on the routes appearing at Serial Nos. 1 to 22, 24, 25, 26, 27 and 53 of the statement appended to the scheme approved under s. 68D(2) of the Act, subject to th~ modifications set out in the notification dated June 7, 1960, included "services between any two places therein" and the transport services were 'to be run and operated by the State Transport undertaking to the complete exclusion of other operators." The notification then sets out the various details of the said approved scheme known as the Banga-H ]ore Scheme. The question at issue is whether the scheme prohibits over· lapping of the route or routes of private operators on part or whole of the notified route. If the route or routes overlap as aforesaid, then no permit can be granted to those private operators over the notified

[197 S] 1 S.C.R.

routes which prohibit them to operate over those routes. This pro-position was laid down is several decisions of this Court to which refe-r.ence will be made hereafter.

Ina recent judgment of this Court by one of us (Beg, J., and Chandra-ch-ud, J., concurring with him in Mysore State Road Transport Corpo-ft~tion v. The Mysore Revenue Appellate Tribunal & Ors,(l) this Court ~s taken contrary viow. No douit this case was one rendered in l'espect of inter-State routes, while the instant case is one relating to intra-State routes. There, however seems to be no difference in the principal applicable to both the cases. The principle governing i.Dtra-State routes has been extended to inter-State routes vide S. Abdul Khader Saheb v. The Mysore Revenue Appellate Tribunt~l, B•ngalore Ors.(2) As the recent decision to which reference has been made seems to take contrary view to that taken by even larger Ben-cbes of this Court; we find it necessary to re-examine the question posed before us.Un6ler s. 68C of the Act where State Transport Undertaking is of opinion that for the purposes of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general OJ' any particular class of such service in relation to any area or route OJ' portion thereof should be run and operated by the State Trans-port Undertaking, whether to the exclusion, complete or partiaJ, of other persons or otherwise, the State Transport Undertaking may prepare scheme giving particulars of the nature of the services pro-posed to be rendered, the area or route proposed to be covered etc. The scheme so framed has to be published under s. 68D, objections called for and the scheme as finally approved has to be published under s. 68F with or without modifications including any prohibitions. on the area or route or parts of an area or route covered by the notified scheme. There is now no doubt that any route or area either wholly or partly can be taken over by State Undertaking under any scheme published, approved and notified under the provisions ofCh. IV-A of the Act inserted by s. 62 of Act 100 of 1956. The pro-visions of this Chapter confer monopoly on the State in respect of transport services to the partial or complete exclusion of other per. sons. In Y. J. Kondala Rao and others v. Andhra Pradesh State Rolld ,Transport Corporation and others,(Y) Constitution Bench of this Court held that Ch. IV-A of the Act in specific terms provides complete and in the circumstances, satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from the notified area or route. Subba Rao, J., as he then was, speaking for the Court pointed out that in Saghir Ahmed v. State of U.P.(4) tbc constitutional validity of s. 42(3) of the Act was questioned. What &lghir Ahmed's case(4) decided was that the public were entitled to uMJ public streets and roads which vest in the State as matter of (l) C. A3. Nos. 1755-1756 of 1968 etc. decided on 17-5-1974. (2) [1973) 2 S.C.R. 925. (3) A.I.R. [1961} S.C. 82. (4) [1973] 2 S.C.R. 925.

MYSORE STATE ROAD TRANSPORT CORP. ·V. APPELLATE 619 TRIBUNAL (Jaganmo!UJJt Reddy, J.) right. The State _as. ~rustce on behalf of the public was entitled to impose all such.l~mttatJOns on ~he character and extent of the user as m~Y be r~q~tstt~ for protectmg the rights. of the. public generally. Withlfi the hmtts 1mpos~d by State _RegulatiOns any member of the public can ply mot<_>r vehtcles on publ!c roads and to that extent he can also carrY o~ b~smess of transpo_rttng p~ssengers with the aid of vehicle. As mfnngement o_f t~e ng~t whtch was challenged in that n case arose b~fo_re _ thc ConstttutiOn (Fm~ AJ?cndment) Act, 1951, the impugned re~tr!ctlOn ~as held not to be JU~llfit:d as reasonable restri. ction imposed tn the Interests of th~ general public. As result of the constitution (First Amcndmcnt) Act, 1951, Art. 19(6) enables the State to carry on any trade or busin~ss eith.:r by itself, or by corpo-ration owned or controllcd by the State, tl' the exclusion crmplcte or partial, of citiz.:ns or otherwise. Sagfl ·,Ahmed's case(szpra) would have no application to schemes notifi.:d under Ch. IV-A of the Act because what has now to be s..:..:n is whether under that scheme private operators are permitted to ply vehidcs on the notified route or routes with or without restrictions, or totally prohibit~d from using those routes. Whether route is inter-State rout!! or intra-State route, the poy;er to exclude is conferred by Ch. IV-A. In Y. J. Kanda 'a Rao's case(supra) the question was whether the word "route" in s. 68C ref..:rs to pre-existing route. It was contended that the words 'route or portion thereof' in the section clearly indi-catts that the route is an existing route because scheme ~annot be framed in respect of portion of the prop<'sed route. This conten-tion was negatived. The Court observed at p. 93 : .E "We do not sec any force in this contention. Under s. 68C of the Act the scheme may be framed in respect of any area ~r route or portion of any area or porti<'n of route. There ts no m tcrcnt inconsiStency · 1 · be tween. a!l are .. a" and "route" · The proposcd route is also an area limited to the route propos:d. The scheme may as well propose to operate transport servtce in respect of new route from point to poin~ and th<>t route would certainly be an area within the mcarung of s. ~8C. We, therefore, hold that s. 68C certainly empow~rs thd ~~~ Transport Undertaking to propose scheme to mclu n routes" • . In tho case of Abdu' GcJjoor v. Stott of .Mysore,(!) a~o~hcra ~;:C~~ tutJOn Bench of this Court consiJen:d the effect c>f nottfyu~~ nder ~~d it was stated thc:ro that whe~ _scheme hadd bcf~~ ~; g~an~ l'f · l_V-A of the Act and an nprhcnuon was ma ea rivate operator, ~m1t on rout~ notified undc:r the scheme ~y bp t to refuse the t ~egionul Transport Authority bad no opttC'n li~ation presented ~rmtt to the private operator an~ to grant the ftPP It has no right to ~k the State Transport Undertalong for a. ~rm Permit-holders cf the 11 . tr rni~hPort for assis~nce servtce holdc:rs. from the Netthe~ p~blic the or ClU~~~n1n pu ~c The general nonly <'duty r th~ 1t per-has __:, olders have any part to play 1n the mat er. (I) {19SSJ 1 S.C.R. 707.

i l I I '

\. I ' i I

to do. is to examine the application and to see whether it is in pur-suance of an approved scheme and secondly whether it has been made in the manner laid down in Ch.-lV-A. If, therefore, the scheme pro-hibits private transport owners to operate on the notified area or route or any portion thereof, the Regional Transport Authority cannot either renew the permit of such private owners or give any fresh permit in respect of route which overlaps the notified route. The question is whether the scheme read as whole prohibits the private owners from operating on any of the notified routes.

In Ni!kanth Prasad & Ors. v. State of Bihar (1) the appellants contended that as the notified route formed part of larger route ope-rated by the private operator, the two routes must be regarded as diffe-rent routes, and the private operator could not be prevented from: running his onnibuses on that portion of his W:!te, which was diff-rent route, although notified. This Court (Gajendragadkar and Hida-yatullah, JJ.,) held that the appellants were not entitled to run over those portions of their routes·which were notified as part of the scheme. Those portions could not be said to be different routes but must he regarded as portions of the routes of the private operators, from which the private operators stood excluded under s. 68F(2) (c) (iii) of the Act. It was observed in that case that as the State Transport Undertaking had already been granted permits over the route "AB", the private opera-tors i.e. the appellants were not entitled in law to renewal of their permits for routes which embraced also route 'AB'. In such circumstances, the Regional Transport Authority could not, but refuse to renew their permits. It was, therefore, incom~etent to renew permit over route embracing route 'AB'. Reliance seems to have been placed upon decisi0n of the Privy Council in Ke ·ani Va''ey Motor Transit Co. Ltd. v. Colombo-Ratnapura Omnibus Co. Ltd.(2). That decision is hardly of any relevance to the question at issue here. In that case both the appellant and the respondent were applicants for exclusive road service licence for the route from Colombo to Ratnapura. There was another route from Panadura to BadL 11 t through Colombo and Ratnapura. The decision in that case depended upon the words of the Ordinance 'such route or on route substantially the same as such route". As pointed out by the Privy Council :

"It appears that Panadura is some six.teen miles along the coast to Colombo, thence from Colombo to Ratnapura is some fifty miles and from Ratnapura to Badulla is further eighty miles. It is obvious, therefore th1t the route Panadura to B1.dulla is not the same or substantially the same route as the route Colombo to Ratnapura."

On the above fact situation. Sir John Beaumount giving the opinion of the BJard obiierved :

•'If "route" has the same meaning as "highway" in the Ordin:mce this argument must prevail since admittedly an Omnibus running on the highway f1=om Panadura to Badulla {1) {1962] Supp. (1) s.c.R. 728. (2) [1946] A.C. 338.

MYSORE STATE ROAD TRANSPORT CORP. V. APPELLATE TRIBUNAL (Jaganmoltarlt Reddy, ],)

will pass over the whole of the highway between Colombo and Ratnapura, but in their Lordships' opinion it is impossible to say that "route" and "highway" in the two Ordinances are synonymous terms. In both Ordinances, ...... thf" two words are used, and certainly not inter.changeably. "highway', is the physical track along which an omnibus runs, whilst "route" appears to their Lordships to be an abstract conception of line of travel between one te>rminus and another, and to be something distinct from the highway traversed ...... there may . be alternative roads leading from one terminus to another but that does not make the route and highway the same."

The question that arises in this case~ whether when one party has monopoly over route licence can be granted to any other party over any part of that route, did not arise for cQnsideration there and in considering that question the distinction between "route" and "highway" is not at all relevant.

In Ni.'kantl1 Prasad's case(supra) the distinction between "route" and "road" was relied upon by the appellants to show that the notified route "AB" was different route from the routes for which renewal of permits was demanded, even though route "AB" might have been portion of the "road" traversed by the omnibus of the appellants plying on their "routes''. Hidayatullah, J., observed at P. 736 :

"The distinction made by t}'le Privy Council is right ; but it was made with reference to the words used in the Ordinances there under consideration. The question is whether similar distinction can be made in the context of the Motor Vehicles Act."

It seems to have been argued before the Court that the word "route" had been used in contradistinction with the word •'area" and hence wherever the word "route" was used it was used in the sense of natio-nalJine between two termini running stated course, and was used in contradistinction to what may be conveyed by the word ''area". As we· have seen in Kondala Rao' s case, (supra) this argument was negatived and so the Bench in Ni kanth Prasad's case(supra) >llowing that deci'>ion negatived it. To our mind the decision in Kelani Valley Motor Tran-sit Co. Ltd's case( supra) lends no assistance to the basic concept of "route'', line of travel between two points, which can be traversed by different roads as was pointed out in that decision itself. route between Delhi to Bombay can be traversed via Agra, Gwalior, Indore, etc. or by some other road say via Nagpur, but whete the road of the route is specified in scheme, and private operators are prohibited to traverse on that route between the two termini, any overlapping of that route would transgress the provisions of the nr·tified route and t4e. Regional Transport Authority cannot but reject an application for ~rmit to traverse that overlapping. Under the Ordinance which the Privy Council was considering in Kelani Valley Motor Transit Co. l..,td's case(supra) preference was to be given to an application from (a) company or partnership comnrising the holders of all the licences for the time being in force and (b) company or partnership comprising

tho holders of the majority of the licences referred to in (a) above, authorising the use of omnibuses on such routes which established the 1ugest number of permits over the route. It is in that connection that the word "route., was considered.

In any case under s. 2(28A) inserted by s. 2 of Act 56 of 1969 tho word' 'route" has been defined as meaning "a line of travel which spe-cifics the highway which may be traversed by motor vehicle between •~ terminus and another". This definition correlates the notional tine of travel between two termini with the portion of the highway 1thich has to be traversed on that route. It is, therefore, apparent that where private transport owner makes an application to operate OD route, which overlaps even portion of the notified rou1e i.e. where tho part of the highway to be used by the pdvatc transport owner traverses on line on the same highway on the noti-iod route, then that application has to be considered only in the lipt of the scheme as notified. If anyconditions are placed then thoM~ qonditions have to be fulfilled and if there is total prohibition then dre application must be rejected.

In C.P.C. Motor Service, Mysore v. The State of Mysore mul Another (1) the prohibition was only against the private owners operating on the routes which lay within the District. In these circums-tances this Court held that the exclusive operation of the routes within t:be District meant that no other omnibus belonging to private cpera-tor couJd run on that sector. The direction. therefore, clt:arly said that the route left to the private operators would be open to them beycnd tbe border of the District. but they were excluded from that portion of the route which lay within the District. again Bidayatullah, J., who delivered the judgment of the Court observed at p. 726. :"The scheme of the Act in s. 68F(2)(c)(iii) also shows that the Regional Transport Authority, in giving effect to the approved scheme, may "curtaiJ the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This makes the route or area stand for the road on which the omnibuses run or porticns therecf, and in view of the fact that the scheme reserved all the routes within the Mysore District to the State Transport Under taking, even those routes which were inter-District cpen to the private operators would stand pretanto cut down to only that portion, which lies outside the Mysore District. The result, therefore, is that no distinction can be made between the noti-fication of portion of the route of the private operators lying within the Mysore District and the nctificaticn cfa different rou-te, in which the portion within the Mysore District is also in-cluded"

This view also has been subsequently taken in Slzri Roshonlal GauttJ.m v. State of Uttar Pradesh and Others.(2)

This Court has consistently taken the view that if there is prohibi-. t1<>n to operate on notified route or routes no licences can be granted

(1) {1962] Supp, {t) S.C.R. 717.

(2) [196.f} 1 S.C.R. 841.

MYSORE STATE ROAD TRANSPORT CORP. V. APPELLATE tl23-TRIBUNAL (/ag<mmohan Reddy, /,)

to any private operator whose route traversed or overlapped any Jlart ()f whole of that notified route. The intersection of the notifitd r()ute may not, in our view, amount to traversing or overlappin~ the 1oute because the prohibition imposed applles to whole or rart cf the toute on the highway on the same line of the route. An intersection cannot be said to be traversing the same line, as it cuts across it.

In the recent case Mysore State Road Transport 'Corporation v. The Mysore Re~·enue Appellate T•ibunal, (supra)the view taken was that 'Wbere two routes-(1) the route plied over by private operators and (2) tlle route notified do not coincide at the points of termini it may Jwt be enough to exclude the private inter·State owners by any necesEary jmplication, and that if the intention is to exclude such useJ of opera-·tion that intention must be made clear in order to have that effect~ Uree schemes \vere considered in that case (1) the Anakal Scheme i (2} t'-c Gulbarga Scheme and (3) the Bangalore Scheme and even though it was admitted that with regard to the Ban~alcre Scheme the, caEe the appellant Corporation was better inasmuch as the words used there are 1'tbe complete exclusion of all other operators excluding the interme-mate routes", nonetheless it was observed that the exclusion appears to ~ only of operators providing services between the termini mc,nti<:ned there and not merely using overlapping portions of the notified routes. illCidentally, and that~ if the exclusion of those using over lapping portions of the surface of the highway common to two different IOUtes was also really intended, they shculd have been named in too appended statement and the number of their stage carria,g(.S shculd bave been given. As no explanation was forthcoming for this omission .. the interpretation of the three schemes advanced en behalf cf the inter State operators was considered to be more reasonable. 1he judpncni

further observed :

"Whatever may be said about the correctness of the decision of this Court in Nilkanth Prasads' case (supra) in· the context of the scheme before this Court for considetaticn in that case and the provisions of the Act as they stood then, we do not think that the Ratio Decidendi of that case is appli-cable here. Upon the contents of the scheme before us for inter· pretation we find tb.at only operators named therein or those v.ho seek to provide "services" upon the routes mentioned in the scbe-:mes, in the sense that they carry passengers travelling frcm one place to another situated only upon tbe notified routes, .ccu1d be totally excluded from using the highways which the notified routes cover. We think that conditions were rightly imposed by the final Transport Appellate Authority on the permits of inter· State operators to bring out what it understood the scheme to mean in each case".

With respect we do not doubt the correctness of the decision i:nNillcanthPrasad's case (supra) which followed the decisions of different Constitution Benches of this Court. Even if that decision has to be dissented from, it could only be done by larger Bench of tbi11 Court. On the other hand if at all the definition of the word "route" ins. 2(28A) lends further support to the principle fnunciatut

in Nilkanth Prasad's case (supra) The scheme betore us clearly notified tne routes at Serial Nos. 1 to 22, 24, 25, 26,27 and 53 including services between the two places therein were to be operated by the State Transport Undertaking to the complete exclusion of all other opera~ tors. In other words, the State Transport Undertaking has been given exclusive right to run on those routes or any two places between those routes or between any two places on those routes. The routes specified in the statement show routes Nos. II and 12 between Chitradurga to Hiiiyur l'ia Iymangala and Chitradurga to Hiriyur via Mardihalli. ·

The proceedings before the Regional Transport Authority of March 25, 1968 in respect of the application of Mjs C. Abdul Rahim & Sons for renewal of their permit were considered as additional Item No.23. C. Abdul Rahim & Sons had been granted permit No. 176}58-59 and that permit was being evidently renewed from time to time on the· route Hiriyur to Chiradurga and back via V.V. Sagar, Hosadurga and Janakal. The last application for renewal which gave ri~e to the present controversy was evidently ma~e on October J, 1967 for rene-wing it for period of five years. Th1s was published on January 11, 1968 and before the Regional Transport Authority C. Abdul Rahim & Sons asked for renewal of their permit as applied for by them in the interest of the travelling public. But the Mysore State Road Transport Corporation objected on the ground that its services will be affected ifthe·grant is renewed. That objection was overruled and the permit was directed to be renewed for period of three years from the date of the expiry of the permit.

revision petition was filed by Mysore State Road Transport Cor-· poration before the Mysore State Transport Appellate Tribunal on the ground that the renewal of the permit was bad as the route proposed for rerr~wal overlapped the notified route Hiriyur to V. V. Sagar over distance of three miles coming under the Bangalore Scheme. This contention was rejected on the ground that in B. Munivenkatas-wamy Naidu's ca~e (Civil Appeal No. 3203 of 1966 etc.) the Mysore Revenue Appellate Tribunal had held "that the integrity of scheme is not impaired if the distance of the overlapping portion is about fh·e miles and if condition not to pick up or set down passengers on the notified route is attached." 'Throughout these proceedings it was no where contested that the route granted to M/s. C. Abdul Rahim & Sons does not overlap the notified route. If that was the case, this question would not have arisen. On the other hand, because the route granted to C. Abdul Rahim & Sons overlapped three miles over the notified route and since the Tribunal had held earlier that any overlapping within five miles .does not impair the integrity of the scheme, the validity of this view is being agitated before us. The High Court dismiEsed the writ peti-tion in limine, notwithstanding the contention urged in tr1e writ peti-tion by the appellant that both the Full Bench as well as Division Bench of the Court had held that the nationalised routes are to be opera-ted by the State Transport-Undertaking to the complete exclusion of all other operators, if such scheme excluded private operators front· op~rating on them.

MYSORE STATE ROAD TRANSPORT CORP. V. APPELLATE 6Z5; TRIBUNAL (Jagannwfwn, Reddy, J.)

similar question has been dealt with by this Court in the Mysore · State Road Transport Corporation's case(supra)to whi.ch we have referred earlier. In that case, the facts have not been stated and we are not in position to know which of the permits in ca~es befc.1e the Court had expired and which of them were renewed during the pender..cy cf' the hearing. If the years in which those appeals were filed ·are taken, as guide, the permits in all those appeals whether renewed fer three years of five years would have expired before the decision was rn:dued. But that was not the reason given for dismissing those appfals. If· this reason is valid, then what was decided in that case would not be the ratio of that case. At any rate, the decision in that case would suffer from the same infirmity which decision in this case may be consi--dered to suffer. But that is not how the decision in that case proceeded. On the other hand, it was assumed in all those case that the appellant was contending that the permits granted were illegal bt:cause those routes overlapped the nationalised notified routes. The fact that permits had~ expired did not preclude this Court frcm expounding the law on the basis that those permits were current. Where permit has been granted against the objection of the State Transport Undertaking <1nd the matter is agitated before this Court, there being no stay, it is diffi-· cult to postulate that even after the expiry of those permits they are not renewed. In this very case, it can be observt:d that the permit is being renewed in favour of C. Abdul Rahim & Sons after I he expiry of each of the periods from 1958 onwards. In any case, it is impermissible for vs suo motlt to look into the interstices oft he case or to raise objections, on assumptions which may or may not be correct. 'I he respon- · dents' non-appearance after due notice cannot preclude this Court from proceeding on admitted facts. At · any rate, no objection of any kind which might preclude determimticn of this qucstic n has been put to the appellant's counsel and it would be unfair if we were to deal with them as if it is admitted. In any case, if the permits which. h;we expired have been renewed, which we have no doubt must have been, then we can mould our relief to suit that changed situaticn. St:e. Mohanlal Clzunilai Kothari v. Tribltovan Hariblrai Tamboli (1). The "Bangalore Scheme" has been the subject matter cf the· Mysore State Road Transport Corporation's case (supra) as also other cases ... Even the special leave petition has set it out. Since the decison which has been challenged proceeds on the basis that Hiriyur to V. V. Sagar route granted to C. Abdul Rahim & Sons overlaps the notified route Chitradurga to Hiriyur, there can no doubt that no permit or renewal· can be granted. This is so even if it overlaps over however· short the distance of the route. Whether particular route granted to private operator overlaps the notified route or not cannot be ascer--tained from the notified route. The notified route may merely state the route to he operated by the State Transport Undertaking and the total of partial prohibition on other operators frcm operating on that route or portion thereof. Where, however other operators are permitted to operate on any portion of that route, it may also provide the tetms and conditicns ur.der;·

(1) [1963] 2 S.C.R. 707.

[1975] 1 S.C.I!..

which they can be permitted Beyond this, from the notified scheme it cannot be ascertained whether any particular permit overlaps the notified route or transgresses any of the conditions or prohibitions set out therein. There is no justification for holding that the intergrity ofthe notified scheme is not affected if the overlapping is under five miles or because condition has been stipulated in the permit that the operators wilJ not pick up or set down any passengers on the overlapped route

On this view, we allow the appeal, set aside the order of the High Court, and direct the Regional Transport Authori~y to ccmply with the require~ents of the scheme as stated by us in respect of any permit granted or m respect of renewal of any such permit made in favour of the third respondent during the pendency of this appeal

Boo, J -The appellant, the Mysore State Road Transport Corpo-ration, had filed writ Petition-cum-affidavit in the Mysore High Court in 1968 It reads :

"I, B. P. Kulkarni Deputy General Manager, Planning Central Offices, Mysore State Road Transport Corporation Bangalore do on solemn affirmation state as follows :

I am the Deputy General Manager (Planning) Central Office in the Department of the petitioner and having read the relevant docu-ments of the case state the following which I believe to be true and co~t ·

Being aggrieved by the Judgment of the first respondent dated 12-7-68 passed in revision petition No 41 of 1968 by which the resolution of the second respondent in subject No 23 dated 25th March to renew the permit in favour of the third respondent for period of three years which in effect permitting of overlapping the notified route of about three miles between Hiriyur and V. V. Sagar Cross in Banga-lore Scheme is upheld, this writ petition is filed under Article 226 of the Constitution oflndia. certified copy of the judgment of the fini.t respondent is filed marked 'A' and certified copy of the resolution ofthe second respondent is filed marked 'B' the following are some of tho grounds of objections amongst others

GROUNDS

1. The second respondent had no jurisdiction to grant the renewal of the pcnnit which overlaps the notified route of the petitioner to

,.. '-' (

MYSORE STATE ROAD TRANSPORT CORP. V. APPELLATE TRIBUNAL (Beg, 1.)

distance of about three miles and hence the first respondent ought to have quashed the said resolution and allowed the revision petition filed by the petitioner against the said resofution. In refusing to do so, the first respondent has acted ultra vires of his powers and in excess of his jurisdiction.

2. That the case of the H. . . Narayanappa v. State of Mysore and others reported in A. I. R. 1960 Supreme Court'at page 1072 has no bearing. The Supreme Court was concerned, in that case witil tho contention that in the Anekar Scheme, only the routes are notified and not the area. In this case the renewal overlaps the notified routea of the Bangalore Scheme provides total exclusion of private operaton.

3. That the Bangalore Scheme provides for total exclusion of the private operators on the notified routes as decided by this Hon'blc Court in W. P. 2579/66 on ~8-68 .

4. That it is the duty of the respondents 1 and 2 to give effect to tho notified scheme under section 68 F(2), of the Indian Motor Vehicle& Act. But by the impugned order the first respondent has acted ia violation ofthe said mandatory provision of law.

5. I believe that there is no other alternate remedy for the petition~ except to invoke tho powers of tho Hon'ble High Court under Articfc 226 of the Constitution of India"

No copy of the scheme involved was annexed to the petition.cum--aftidavit. Some relevant facts may, however, be gleaned from othe~ material on the meagre record. copy of the impugned order (annexure 'A• to the writ petition) of the Mysore State Transport Tribunal in-dicated that the petitioner had objected to the renewal of "permit No. 176/58 for the route Hiriyur to Chitradurga and back via V. V •. Sa~ara, "-1osadurga and Janakal" for period of 3 years from the date of the expiry of the permit. The short order of the Tribunal rejectin1 the appeal of the petitioner appellant mentioned:

"According t9 Shri Srinivasan, the order of renewal is bad as the route proposed for renewal overlaps the notified route between Hiriyur and V. V. Sagar. distance of 3 miles coming under Bangalore Scheme ...

Jt then stated that the reasons for the conclusion reached by the Tribunal, that the overlapping portion of 3 miles does not impait' the integrity of the scheme, are to be found in another judgment which was neither placed before the High Court nor before us. Again. ~lance at copy of proceedings before the Regional Transport Au. tbority on record (annex.ure'B') shows that item No. 23 related to an. application for renewal of oormit No. 176158 fortheroute "Hiriyur to Chitradurga and back via V. V. Sagara, Mosadurga, and Janakat daily one trip for period of five years from 1·10·67 to 30.9-72".

The renewal granted was for 3 years which meant that it had t'Xpired on 30-9·70. No attompt has been made to challenge any subsequen' renewal. we do not know when the original permit was given, bllt

number "176/58" indicates that it was probably taken out in 1958. Therefore, any relief we could now grant could only be declaratory in respect of a- very old permit whose validity should have been challenged long ago. It was, presumably, renewed earlier. There must have been similar objections earlier too on the strength of the provisions of the Bangalore Scheme which came into ·force on 7-6-1960. If so, these must have been failed. An attack in 1968 upon the validity of such permit which was probably issued ten years earlier but said to have become invalid, so far as the overlapping portion of the route is concerned, eight years before challenging it by means of writ petition would be too belated to deserve even consideration .. Even the date on which the Bangalore Scheme was notified was not apparent from anything on record. It was not given in any order or other material either in our printed paper book or on the record of the Mysore High Court sent to this Court which I have examined. We have, therefore, to be able to proceed further at all to consider this case, to assume that the purported copy of the scheme, giving the date of notification of its approval as 7-6-1960, handed in by learned counsel for the appellant after arguments, is correct copy of there-levant notification in an official Gazette. We could of course, take judicial notice of such notification.As I shall indicate later, the date of the original grant or ·permit a~td whether the respondent operator and others like him were plying stage carriage<> for hire upon part of a: notified route, and if so, on which particular route, at the time of the 11otification of the Bangalore Scheme. have considerable importance for the rights of the parties determined by an interpretation of the 11cheme, in the context ofrdevant ru1es, which seems to be not only open but decisive on the languz.ge of the scheme quite apart from an~.~ other question. IndeeJ, without necessary averments and findings of facts on these questions, it does not seem to me to be possible to deal satisfactorily at an with the case before us. To add to our difficulties, the respondent operator, the renewal of whose permit wa!) questioned by the appellant, could not appear before the High Court because no notice of the Writ Petition, dismissed in limine, was set to him, and, for some reason (possibly cause he is no longer interested in this particular permit after the expiry of the impugned renewal in 1970), the operator has not put in appearance in. this Court. The result is that we have not had the benefit of heartng any arguments for the respondents in this appeal before us by special I eave grauted, as the order of this Court on the special leave petition shows. only because it had been granted in other similar cases with which this case should have been connected. Those other cases have been heard and decided on 17-5-1974 against the appellant inMysore State Road Transport Corporation v. the Mysore Rel'enue Appellate Tribunal & Ors. (1).

I have referred to the state of the record before us because, speaking for myself, I think it is imperative for petitioner invoking the writ issuing jurisdiction of High Court, whoever

for petitioner

(1) Civil Appeals Nos. 1755-56 etc. etc. decided on 17-5-1974.

"'( l" .. •

" MYSORE STATE ROAD TRANSPORT CORP. V. 629 APPELLATE TRIBUNAL (Beg, J.)

the petitioner may be, to set out facts with sufficient particulars t() enable the High Court to exercise its writ issuing prerogative powers correctly. In the case before us, I find it very difficult to hold that the . High Court had erred in rejecting the appellant's writ petition in limine. As it gave no reasons for the rejection we do not know what they were. There could on facts stated above, be more than one good ground for rejecting the writ petition in limine. It also rejected an application for grant of Certificate under Art. 133(1) (c) of fitness of the case for an appeal to this Court after merely expressing the opinion that it was not fit case for certification. Thus, we are faced, at the outset, with the difficulty that, unless we were to assume certain state of facts giving rise to question of Jaw, it would be difficult to find the question we could or should consider and decide in this appeal by special leave. We have not got before us any judgment in which essential facts are elucidated. The Writ-Petition-cum-affidavit, set out in full above, is devoid of indispensable particulars.

' • ~ ;,;! ' -{ -4

Learned Counsel for the petitioner seemed to me to assume that the so called "Bangalore scheme." does exclude plying of stage carriages over overlapping portion of 3 miles between Hiriyur and V. V. Sagar simply because it is notifie.d route. This is exactly what had to be shown to us from the contents of the scheme, after applying correct principles of interpretation to. it, and from facts asserted and found showing which out of the large number of notified routes was being used by the respondent operator. · Even in the course of arguments learned Counsel for the appellant did not show us on which route the strip between Hiriyur and V. V. Sagar fell. This was essential because plying on overlapring parts of each one of 94 notified routes is not by itself, I find, forbidden by the relevant provisions of the scheme which I propose to consider. \

.:f ~ ""'

It appears to be the submission of learned Counsel for the appeJlant that, as the Bangalore scheme was actually considered and interpreted earlier in the judgment of 17-5-74 by bench of this Court and certain general propositions oflaw were a}so discussed and enunciated there, we should, simply for that reason, consider those very questions oftaw again on assumed facts and rectify what, it is submitted on behalf of the appellant, are errors in the opinion of the Bench which decided the cases mentioned above. The main argument against the views expressed in that judgment is that these are not reconcilable with earlier decisions, and, in particular, with Ni'kanth Prasad & Ors. v. State of Bihar (1) case. This contention rests on failure to appreciate what was really in dispute in earlier cases and what was the ratio decidendi of Mysore State Rood Transport Corporation's cases decided on 17-5-1974.

I think Dr. A.. L. Goodhart has correctly said, in an elaborate essay on "Determining the Ratio Dtddendi of case" (See : "Jurisprvdence in Action", 1953, Essays published by the Association of the Bar of New York). that the principle the principle of case is determined by taking into account the facts treated by the Judge deciding case as material and

'* ~ in Action", 1953, .. New York). that the principle the principle account the facts treated by • (1) [1962] 1 Suppl. S.C.R. 728. 8-M135Sup.CI/7S

his decision "as ba~ed thereon". Salmond, in his "Jurisprudence" (12th Ed. p. 181) has observed that Courts, _in ~heir que~t for "t~e rule which th~ Judge th)ught him~elfto be applymg' tend to tgnore th1s me-th)d in practice. It was stated there : "any such rule must be evaluated in the light of facts considered by the Court to be material". Therefore, we have to find out what was really the basis of the decision of 17-5-1974 in Mysore State Road Transport Corporation's case (Supra) before attempting to deduce any general principle or proposition of law froJ?l it which could be said to be in conflict with earlier decisions of th1s Court given upon other schemes and in different legal setting.

perusal of the Judgm~nt of 17-5-1974 in Mysore State Road Transport Corporation's cases reveals that it dealt with 22 appeals by special leave and thirteen special leave petitions involving 3 different schemes. All these were connected and heard together because of comm')n qu~stion of law said to be involved there. This Court could not, th~refore, go into the facts of each case separately. It framed the common que>tion of law an answer to which could decide all the cases .before it. It then found that the answer could not be given without reference to the provisions of and an interpretation of each particular scheme.The judgm~nt starts b~ accepting as correct the position found in Nilkanth Prasad's case (supra) and in S. Abdul Khader v. Mysore Re· venue Appellate Tribunal & Ors, (1) that scheme could exclude plying of state c:urhg~s on hire by private operators completely on route if th3t is what was intended by it. It then referred to the re-levant provisions of law for framing of scheme, including the rules notified in the My .sore Gazette dated 27-2-I 958laying down specification of certain particulars as necessary conditions to be observed in framing schemes so as to make it clear which private operators were excluded either wh)lly or partially from plying upon any route or portion of route. Th~se plrticulars were required by the rules framed so that duty im_?osed by s~ction 68C of the Motor Vehicles Act (hereinafter referred to as 'the Act') may be discharged. It was also difficult, with-<>Ut the3e particulars, to apply Section 68F meant for the enforcement of the schem'!. The cases were decided on an interpretation of each scheme in th~ light of the rules. The correctness of the decision of each case by int.:rpreting the provisions of each scheme, stands apart from the meaning to be attributed to the term "route" under the provisions of the Act.

As one of the schemes whose provisions were interpreted by the judgment of 17-5-74 was the Bangalore Scheme now before us, we have to look at lh! pruvisions of that scheme to test the correctness of the decision on the assumption that the term "route", for the purposes of this aspectofinterpretation, must be equated with highway or road covered by it. Proceeding on this assumption, for the purposes of this argument, we may exanine the Bangalore scheme.

(1) [1973] 2 S.C.R. 925,

11 . ' •

We find that sub-rule 3 and 4 of rule 1 are repeated the headings 9f clauses 3 and 4 of the scheme, given in on the left hand side with the relevant contents of the scheme under the appropriate heading on the y right hand side against each heading. The relevant clauses read .thus:

"3. The route or routes (with their (a) The passenger transport ser-starting points, termini, inter-vices on the routes appearing 8 mediate stations and route at S. Nos. 1 to 22 and 24, length) in which the State Road 25, 26, 27, 28, 39 and 53 of the · Transport Undertaking shall statement appended including introduce its services to the ex-services between any two places clusion of private operators. therein should be run and operated by the State Trans-port Undertaking to the com-plete exclusion of other opera-tors;

(b) Subject to (a) above, the State Transport Undertaking should operate services on the remaining routes appearing in the statement appended bet-ween the two specified ter-minals only to the complete exclusion of all other operators, excluding intermediate routes;

4. The . number of eXIsting stage At present, only the Myscre carriages on each route with the Government Road Transport number of trips and the names Department is operating services of their operators. on these routes, and in the num-ber of existing stage carriages and number of trips are as in statement appended".

In the preamble to the Banglore Scheme we find that the scheme submitted by the Mysore State Transport Undertaking was approved under Section 68-D(2) of the Act by the Govt. of Mysore subject to the following modifications:

"(a) that the passenger transport services on the routes appearing at S. Nos. 1 to 22 and 24, 25, 26, 27, and 53 of the state-ment appended including services between any two places there-in should be run and operated by the State Transport Under taking to the complete exclusion of other operators;

(b) Subject to (a) above, the State Transport Undertaking should operate services on the remaining routes appearing in the Statement appended between the two specified terminals cnly, to the complete exclusion of all other operators, excluding the intennediate routes;

(c) the approved scheme shall come into force from the date of its publication in the Mysore Gazette".

Neither proposals originally made nor the decisions given thereon apart from what is stated in the preamble were placed before us to throw light on the precise meaning of any ambiguous parts of the contents under headings 3 and 4 of the scheme. We also find that the headings 3 and 4 mechanically repeat the provisions of sub-rules 3 and 4 of rule 1 of the Mysore rules. The contents of the scheme against the heading similarly repeat faithfully the provisions of the preamble except that route Nos. 28 and 39 are found added in class (a). It is quite clear that notified routes are divided into two cla~ses. In class (a) are placed routes numbered 1 to 22 and 24 to 28 and 39 and 53, whereas the reamain-ing routes are placed in class {b). glance at the purported copy of the scheme placed before us shows that there were altogether 94 routes separately numbered. Each route is identified by its termini with separate colwnn for intermediate stations of each routes. Out of these routes, only 29 are placed in class (a) of complete exclusion of private operators from them, including services between "any 2 places therein". The remaining 65 notified routes obviously fall in class (b) of exclusion private operators from services "between 2 specified terminals only." In other words, plying on overlapping portions, which did not con-stitute service "between the 2 specified terminals only" of notified routes, was not excluded. This interpretation is clarified further and reinforced by the specific statement that the complete exclusion of all other operators in class (b) was subject to the exclusion of "intermediate routes" from the exclusion clause itself. This is the only distinction between the 2 classes and its only reasonably possibly meaning. Other-wise, there was no point in dividing the 94 routes into two classes.

In cases falling within class (a) of the Bangalore Scheme one could perhaps reasonably assume ~omplete ~xclusion of private operators ~ut not in class (b) where exclusiOn of pnvate operators from overlappmg parts of routes was expressly exempted. Indeed, this meaning becomes even more reasonable and evident if the term "route" is identified with "highway" or "road". Plying ~tween an "inter~ed!ate': portio~ of specified route as ~ part of ~he highways necessanl~ 1~phes !~mg · on overlapping port10ns of highways. The Bench, m Its decision of 17-5-1974, was unable to relate the facts of the cases before it to the prohibition of overlapping of routes. This also meant that it could not determine whether cases before the Court relating to the Bangalore scheme fell within class (a) or class (b). It pointed out that the Mysore Transport Undertaking bad the remedy for thls uncertain state of affairs in its own hands if complete exclusion of private operators from every overlapping part of notified route was also intended by the framers of the scheme. It could go before the State Govt. with pro-posal to get the Bangalore scheme appropriately clarified and modified under Section 68-E of the Act. Instead of doing that, the Mysore State Road Transport Corporation had preferred to litigate over this issue from 1968 ownwards in an attempt to exclude other operators who may have been operating even before the scheme came into force · but who were not treated as excluded operators by the scheme itseJf as they only used overlapping parts of certain routes. It was essential to show us, before asking us to infer complete exclusion that, even on the

assumption made above, the overlapping part involved in case falls at least under class (a) of notified routes.

Speaking for myself, I am unable to discover any flaw in the reason-ing of the Division Bench decision of 17-5-74 of this Court. It did not deal with such questions as the failure of the Mysore State Road Transport Corporation either to object to earlier renewals or to cha1lenge any possible subsequent renewals in cases where renewals had expirtd during the pendency of appeals in this Court because doing that would have meant burdening the judgment with questions relating to indi-vidual cases. It was not necessary to do so for the decision of all the cases on common question of law.

The Bangalore scheme was found to be too ambiguous to be capa-ble of implying prohibition in all the·cases before the Court which were set up with no greater clarity and definiteness than the case now before us has been set up. Indeed, I suspect that the meagre state-ment of facts in the Writ Petition of the case before us and in other cases which were decided on 17-5-74 and the failure of the appellant to base its case upon clear assertion that it fell fquarely within the four corners of class (a) of the excluded operators may be due to the fact that the case actually fell in class (b). I do not find it possible, on the statements made in the petition before us or in the orders ofthe Trans-. port Authorities, to correlate any particular part of the route of the respondent with route falling within class (a) of the 29 routes dealt with in class 3 (a) of the scheme. similar view underlay the decision of 17-5-74 by Bench of this Court. It said :

"Lastly, as regards the Bangalore scheme, the case of the appellant Corporation may seem better inasmuch as tne words used there are : 'the complete exclusion of all other operators excluding the intermediate routes'. But even here, the exclusion appears to be only of operators providing services between the termini mentioned there and not merely using overlapping por-tions of the notified routes incidentally" .

. -~ ..

The reasons for this view are now given-by me more elaborately and explicitly and with special reference to the assertions made by the appellant in the case before us.

I will now turn to the question whether the concept of "route", which was held to be correct, by the Division Bench in the judgment dated 17-5-1974, in the context of the schemes bttfore it and the change of law after the amendment of the Motor Vehicles Act by the Act No. 56 of 1966, adding definition of "route" was in conflict with any of the earlier decisions. Inasmuch as neither the provisions of the schemes interpreted by the judgment of 17-5-1974 nor the amended law was before this Court on any earlier occasion, I find it very diffi.-. cult to accept the view that we are still bound by declaration of law by this Court on other schemes or on law prior to the amendment relied upon in the judgment of 17-5-1974. Indeed, I think that the bench of this Court respectfully followed the

rule of interpretation deducible from Niikanth Prasad's case (supra) : that the meaning to be assigned to the term "route" depends upon the relevant provisions of law for interpretation before the Court. It has been contended on behalf of the appellant itself that each approved scheme constitutes law. Accepting this submission, which is supported by- pronouncements of this Court, an interpretation of each separate scheme would be an interpretation of different law to be given in the context of the provisions of that scheme.

Hidayatullah J., in Ni!kanth Prasad's case (supra) did not consider the concept of "route" found in the Kelani Valley Motor Transit Co. v. Colombo Ratnapura Omnibus Co.(l). to be incorrect. The learned Judge said (at p. 736) :

"The distinction made by the Privy Council is right; but it was made with reference to the words used in the Ordinances there under consideration".

The Division Bench of this Court in its judgment of 17-5-1974 also found this meaning of "route'' to be correct in context different from the one which was before the Court when it decided Ni!kanth Prasad's case (supra). The reasons why the bench of this Court, in its judgment dated 17-5-1974, did not equate the term "route" with "road" were two fold : firstly, different concept under-lay each of the three schemes before the Court, including the Bangalore scheme, and the relevant rules to be observed in framing such schemes; and, secondly, the newly introduced definition constituted an amendment of or departure from the definition of "route" found in Ni'kanth Prasad's case (supra). Obviously, neither Ni!kanth Pras(]d's case nor other cases are applicable authorities either on any question of interpretation of the provisions of the Bangalore Scheme or on the question whether the law· giving the meaning of "route" had changed in the direction indicated by the judgment of 17-5-1974~

I may now elaborate the two sets of reasons underlying the defini-tion of the term "route" adopted in the judgment of 17-5-1974, although, as I have explained earlier, new definition of the term "route" was not absolutely necessary for the decision of 17-5-1974 or of' the case before us because of the ambiguities resulting from the very meagre assertions, devoid of particulars, with which the appellant petitioner went to the High Court. Their scantiness could perhaps be only matched by the paucity of the provisions of the Banga1ore scheme itself. ·

I will first take up the second of the two· sets ofreasons given above for accepting new definition of "route", as that seems to me to raise the narrow question into which the main difference between the views of my learned brethren, for which I have the greatest respect, and mine resolves itself. That question is : Did the addition of definition of "route" by Section 2(28A) of the Motor Vehicles Act in 1966 signify departure from or change in any definition of it by this Court deduci-ble from the judgment in Ni!kanth Prasad's case (supra) ?

,'*' ...

MYSORE STATE ROAD TRANSPORT CORP, v. 635 APPELLATE TRIBUNAL (Beg, J.)

The rules to be employed in an,swering such a, question were laid down along ago in Heydon's c~se(l) where, in what appears to us the rather quaint 16th century hmguage, it was said : .

"that for the sure and-true interpretation of all statutes 'four things are to be discerned and· considered : · Ist, what was the Common· Law before the making of the Act ? 2nd, what was the mischief and defect for which the Commcn Law did not provide ? 3rd, what remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth ; and, 4th, the true reason of the remedy. And ~hen the office of all the Judges is to make such construction as shall suppress the mis-chief ana advance the remedy ............... according to the true intent of the makers of the Act".This Court, which has repeatedly applied these rules, poiDted out, in Bengal Immunity Co. v. The State of Bihar & Ors.,(2) that the method of interpretation found in what is known as the "Mischief Rule" is "as necessary now as it was when Lord Coke reported Hey-don's case". Expressed in modern terms it only means that the pur-pose and significance of an enactment is to be found .after exploring the short-comings or the defects which were s<JUght to be removed by means of it by Parliament which does not legislate in vain or without some reason or need for it. And, as all law, including enacted law, is response to need which has arisen, we have to examine the situation or the context in which the need for an amendment in it arose by an addition in it or alteration of it in order to appreciate its true meaning. Law, after all, is not static. It changes in response to the growing needs it ~as to serve so as to advance the public good. · .

Ours is developing country in which Motor Transport serves an. essential need for lOcomotion by members of the public who, as wor-kers, as businessmen, or as persons pursuing their various avocations in life must be transported conveniently and rapidly from one place to another if they are to efficient!~ work and add to national wealth. It is obvious that the expenditure and organisation involved . in maintaining an efficient and comfortable motor transport service extending over long distances is so great that only the State can meet this public need satisfactorily. It was for this reason that the amend-ing Act 100 of 1956, introduced the provisions of Chapter IV-A into the Motor Vehicles Act so that (See Section 68C) schemes may be fra-med for running motor transport services by State run undertakings for the purpose of providing "efficient, adequate, economical, and pro-perly co-ordinated road transport services", when it is found to be "necessary in the public interest that road transport services in general or any parti,cular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or otherwise". It is noticeable that the power given to frame scheme which has the force oflaw was to be exercised in such way as to give all persons affected including members of the public, for whose benefit scheme was to be framed, due opportunity of being heard

(1)' 1584 (3) Co. Rep. 8.

(2J [1955] 2 S.C.R. 603 633.

so that there may be proper adjustment between the amount of ex-clusion needed for maintaining an efficient State owned motor transport service and the needs of the public, particularly on smaller routes, which could, in certain cases perhaps be better served by private operators. Such Private operators may be more aware more watchful, and better able to meet the need's of the public of particular locality. Hence, consistently with our mixed economy, the provision made was not for total exclusion of private operators, automatically by the mere fact of notification of route or area, but, for framing of schemes with necessary particulars indicating the extent to which private operators were to be excluded or still allowed to operate in any manner on notified routes. The schemes could be of either total or partial exclusion of private operators from routes or areas. ·Another noticeable feature of the law, as found in Section 68C of the Act, is that it confers power to exclude private operators only from proposed "services" of particular areas or routes. Each scheme was meant to contain "particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed". The whole object of these provisions was to make scheme elastic enough to be capable of serving public needs by such combinations or mutations of State Transport as well as private transport services as may be shown to best subserve public convenience and interests, although, where this was found necessary for satisfying public needs, complete exclusion of private operators from certain routes and areas is possible. Further-more, the framers of Section 68C spoke of "the area or route proposed to be covered" by services but avoided using the word '"road". It seemed, therefore, that they intended to distinguish the right of the public to use the highways which are, as is well settled in law, dedicated to the use of members of the public in various ways (See : Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr;(l) Municipal Board Manglaur v. Mahadeoji Maharaj; (2) and Sagir Ahmed v. State of U.P.),(3) from the right to provide motor transport services to pas. sengers paying for these services on specified routes or in particular areas. The right to provide these services could be vested wholly or partially in State undertakings. It is only in this sense that particular "route" of stage carriage, representing right to provide particular service exclusively, could "vest" in State undertaking

It is also noticeable that, before the addition of Section 2(28A) of the Act by the Amendment Act 56 of 1966, there was no definition of the term "route". The result was that this Court had indicated its own definition in Nilkanth Prasad's case (supra). This case related to route from Gaya to Khijirsarai on which, according to the statement of facts in the case, the Rajya Transport, Bihar "was exlclusively allowed to operate". No question of exclusion of private operator from merely an overlapping part of route was involved there. It appeared that there private operators claimed right to ply for hire over the whole

(1) A.I.R. 1973 S.C. 87, 103.

(2) [1965J 2 S.C.R. 242.

(3) [l955J 1 s.c.R. 101.

identified the term route with road and contained an observation th1t the "route" vested in the Undertaking. If this view was to be carried to its ·logical conclusion, the State Transport Undertaking could exclude even the user of road by anyone for any purpose what-soever provided it notified route which ran over it.· Such conse-quence appeared to be quite alarming. In any. case, until scheme made it clear what was really excluded, Court had to be careful not to exclude operators who may b~ serving an urgent public need with-out damaging the interests of any State Undertaking. ·

While this was the state of our law before the definition of the term "route" by Act 56 of 1966, there was another definition of this 1 term ~ontained in Kelani Motor Trunsit Co.'s case (supra). lt was held there with reference to the provisions of certain ordinances from Colombo; (at p. 345-346) : .

" ...... in their Lordships opinion it is impossible to say that "route" and "highway" in the two Ordinances are synonymous ter~s. In both Ordinances, particularly inS. 54 of the original Ordmance and s. 7 of the amending Ordinance, the two words ~re used, ~nd certainly not interchangeable. "highway" Is the physical track along which an omnibus runs, whilst "rout7" appears to their Lordships to be an abstract conception of hne of travel between one terminus and another, and to be something distinct from the highway traversed". perusal of the JUdgment of the Privy Council in Kelani Valley Jrfotor Transit Co.' s case (supra) shows that in arriving atthe conclu· swn _set out above, it thought that it was very significant : "that, every applicant for licence for an omnibus. shall specify in his application particulars of the route or rout_es on which it is proposed to provide "service'' under the licence"; that, every licencing authority had, under Section 54, to "specify on every licence for an omnibus issued by that authority ..... .

(a) the approved route or routes on which that omnibus may ply or stand for hire, and the number, if any, assigned to each route under S. 57 ;

(b) the two places which shall be the termini of each such route ; and

(c) the highway or the several highways to be followed by the omnibus in proceeding from one terminus to the other" ;

that, the Commissioner had to "specify in the licence the route or routes on which the service is to be provided in the lieence". It is clear that these features, which were present under the Ordinances interpreted by the Privy Council, are also present under our Motor Vehicles Act. Moreover, it is very difficult to conceive of anyone get-ting monopoly to use certain roads merely because of an exclusive right to ply over particular route given for the purpose of providing particular services between given termini. Some overlapping of routes,

MYSORE STATE ROAD TRANSPORT CORP. V. 639' APPELLATE TRIBUNAL (Beg, /.)

particularly in large city, whether it is Delhi, or Louden, or New York or Colombo, is quite unavoidable where number cf services between different termini have to be provided. The rcutes are in..: variably numbered as they are under the Bangalore Scheme. This fact was also considered significant by the Privy Council in reaching its conclusion which appears to conform to general practice world over to meet practical requirements and exigencies. It is particularly use-ful in framing schemes which have to specify what particular services are to be provided by State agencies and which by other operators.: Particular routes, irrespective of overlapping over their portions, could be separately numbered and indicated fer particular classes of service. This. seems quite unavoidable if the convenience cf the rublic using the highways and elasticity in the framing of schemes are to re governing factors. These considerations are meant to be decisive both under Section 47 ofthe Act as well as under Section 68C of Chap..: ter IV-A of the Act.

One is, therefore, driven irresistibly to the conclusion that an. amendment in the definition of route was considered necessary by Act 56 of 1966 by Parliament as the concept of "route" contained in Ni!kanth Prasad's case (supra) was highly inconvenient and unsatis-factory in framing schemes of transport services for the benefit of the public for whose use the highways are dedicated, and that it preferred the definition of route as an abstract "line of travel" between two termini. In fact, this is exactly what the definition said when it laid down in Section 2(28A) :

"route" means line of travel which specifies the highway-which may be traversed by motor vehicle between· one terminus and another".

In the definition set out above, introduced by the Amending Act 56 of 1966, there is clear d1stinction between "the line of travel'~ between two termini, which route is, and the highway which is to be traversed by motor vehicle to which "route", as "line of travel", may be assigned. To identify route as line of travel with the· actual road on which vehicles traverse would, it appears to me, amount to altering the definition set out above into : "a route is that part of the highway on which motor vehicle may travel". If that was the real meaning there was no point in intrcducing the concept of ''line of travel", which is abstract, and mentioning the highway as the concrete surface of the earth over which vehicle traverses or the route lies. What is super-imposed as "line of travel" can only be conceived of as an abstraction or separable essence.

It seems to me that there is nothing in the working of the provisions of Chapter IV-A of the Act which conflicts with the new definition lying down that route is "a line of travel" as an abstract concept. Section 68F of the Act, which enables the curtailment of route, does not appear to me to have anything to do with the concept of route. It mere1y prdvides for the consequences ofthe enforcement of scheme which may involve the curtailment of route or area so as to fulfil

the requirements of the scheme, whatever may be the meaning of "''route". The curtailment of route does not imply that the route is 10 be necessarily equated withj highway or that its curtailment elimi-nates overlapping of routes.

For all the reasons given above, I think that the new definition of .a route introduced by Act 56 of 1~66 was not intended to merely declare the law. which is judicial function, but to amend the law as ·?e~Iar~d by ~his Court in Ni/kanth Prasad's case (supra) so as to bring 1t m lme Wtth public needs and convenience. It answered "felt necessity''. On .this view of the matter, I think it could not be urged tha.t either Nilkanth Prasad's case (supra) or that S. Abdul Khader Saheb's case (supra), which do not deal with the law as we find it laid down in the amended provision would stand in the way of the view taken in the judgment of 17-5-1974.

I may now briefly dispose of the first of the two set of reasons given for adopting what may be cailed the "abstract" definition of "route" discussed above-that the provisions of the Bangalore scheme fit in with such definition. In support of this approach, as already men· tioned above, one could cite Nilkanth Prbsad's case (supra) itself be-cause that decision had proceeded on the view that the definition of route must vary with the legal provisions to be interpreted. If each scheme embodies set of rules which have the force of law it is possi-ble for the term ••route" to bear different meaning under each separate scheme unless there is some statutory provision which prevents this from being done. I have already considered the statutory provision which has, in my opinion, introduced an abstract concept of "route" even though it is linked with highway so that the two routes may be different, ev~n when the termini are identical, if the highway specified and to be traversed are different. The specification of the termini as well as of intermediate stations is intended to indicate only the direction to be followed or the high way to be traversed. It does not mean that the route is to be identified with highway to be traversed taking route. This view seems to me to be borne out by the provi-1lions of the rules 3 and 4 framing the schemes and also by the conten~ ()f the Bangalore scheme.In reaching conclusion about the meaning of the term "route" to be found in the Bangalore scheme, the judgment of 17-5-1974 shows that this Court accepted the argument advanced on behalf of the pri-vate Inter-State operators that the failure to specify their names in entries against heading 4, as required by Rule 4, indicated that they were not considered by the framers of the scheme to be plying on any of the notified routes at aU. In other wor~, although they were ply-jng on overlapping portions of notified routes, yet, the scheme treilled .them as persons not plying on the notified routes. The entry actually was that only State owned vehicles were plying on notified routes. This meant that the concept of the route in the minds of the framers of the scheme was an abstract one of service between two termini only with certain given intermediate stations indicating the directions to be taken

MYSORE STATE ROAD TRANSPORT CORP. V. 64 t AP;pELLATE TRIBUNAL (Beg, /.)

by the line of travel and that they did not consider mere user of over-lapping portions of routes by private operators, who were actually. already there, as provision of services on those routes.

. .., '

To counter this argument in the cases decided on 17-5-1974, as . in the case before us, learned Couse! for the appellant Corporation tries to contend that private operators had been introduced onl'y after· the scheme had come into force in 1960. This assertion is based· on no evidence whatsoever. On the other hand all the probabilities· . of the case are against the correctness of such sweeping claim. The whole scheme governs according to the copy of it handed in by the learned Counsel of the Appellant Corporation 94 routes including very large number of routes starting from Bangalore and others from· Mysore City. It seems quite inconceivable that in 1960 no private state carriages were providing any service on any of the roads covered' . by ninety four routes. The only rational explanation of the statement. that only State transport services ran on these routes in 1960 is that routes were identified by their termini and intermediate stations. The: highways were to be specified to distinguish them from and no~ to · identify them with routes. The two concepts were different.Furthermore route No. 39 is mentioned merely as "Mysore City' Service". In other words it is described as "service" which iS an abstract concept. In column 3 meant or intermediate stations in the· statement annexed to the scheme occur the words : "all routes im the city of Mysore and its suburbs". Now "Mysore City Service" could not conceivably be any highway. The· entries in column 3 of the statement are not of intermediate stations but "all routes in the city of Mysore and its suburbs". If the intention was that all the roads in the city of Mysore were reserved exclusively for the use of vehicles of the State Transport Undertaking it would completely paralyse the business of all private operators who could not enter Mysore City at aU. I do not think that we could adopt such an unreasonable interpretation of the Bangalore scheme. If that was the intention or its framers they should have clearly said so. In that case the consti-tutional validity of such provision could be considered because the constitution postulates the exercise of all power including legis-lative power, reasonably and for satisfying the purposes for which it is meant. The restriction or deprivation could not be excessive or more than what was needed to serve the purpose for which it was to be imposed. Section 68C of the Act restricts schemes to be framed under it to purposes given there. scheme of complete exclusion of private operators from any number of "routes' as defined by Sec. 2(28A)' and explained above, could satisfy these tests. But, their complete exclusion from the user of certain highways may violate Article 19(1} (g) of the Constitution in addition to falJing outside the purview of Section 68C of the Act. I tis well established rule of construction that,. even where two alternative interpretations are equally open, the one which avoids an invalidity should prevail. This mode of construction . is only an application of the principle : utres magis valeat quam pereat.

It, therefore, appears to me that the difficulties mentioned above ·~ould only be overcome by accepting the view that both the intro-·duction of new definition of route by Act 56 of 1966 as well as the provisions of the Bangalore scheme are based upon definition of "route" which coincides with the view taken of very similar pro-visions by the Privy Council in the Ke/ani Va/tey Motor Transir Co.'s .case (supra). If we were to accept this concept of route the mere ·overlapping of some portions of route, whether it faiis in class (a) or class (b) ofthe routes mentioned against heading 3 of the Bangalore ·scheme, would not debar private operator from plying on his own .but different route which is not notified at aU.

An objection to the meaning of the term "route'' adopted by me is that, if it was accepted, the provisions of scheme could be defeated by creating almost wholly overlapping but very slightlY longer or shor-ter routes. I have no doubt that, if mala fide attempts were made to deliberately circumvent provisions of scheme, neither transport authorities nor Courts would allow them to succeed. It was for this reason that the State Transport Tribunal had evolved its own formula that overlapping beyond five miles should not be permitted. This 1imit set by it did not, in my opinion, contravene any provision of the scheme which is silent on the matter. In any case, I do not see why Courts and not those who can fill up gaps by amending scheme should ·be called upon to convert into prohibition what seems, on grounds given above, to be permitted to citizens as incidents of their rights to use highways.

·For an the reasons given above, I see no reason whatsoever to take ·a different view from the one I took in the judgment of 17-5-1974. The result is that I would dismiss this appeal with costs.

ORDER

In view of the majority decision, we allow the appeal and direct the Regional Tr,msport Authority to comply with the requirements of the Scheme as stated by us in respect of any permit granted or in re3pect ·~f renewal of any such permit made in favour of the third respundent .during the pendency of this appeal.