1998 Supreme(SC) 791

1998(6) Supreme 316
Supreme Court of India
(From Andhra Pradesh High Court)
S.C. Agrawal, S. Saghir Ahmad and M. Srinivasan, JJ.
A.P.S.R.T.C. etc. etc. -Appellants
versus
State Transport Appellate Tribunal & Ors. -Respondents
Civil Appeal No. 3715 of 1998
(Arising out of SLP (Civil) No. 21474of 1997)
With
C.A. Nos. 3716 to 3738 of 1998 & 3740 to 3742 of 1998
@ SLP (C) Nos. 547/98, 598/98,1116/98, 1171/98, 1139/98, 1118/98, 1122/98, 1138/98, 1168/98, 1128/98, 1117/98, 1172/98, 1281/98, 1304/98, 1642/98, 1787/98, 1758/98, 2001/98, 1530/98, 1628/98, 7553/98, 7542/98, 11127/98, 22779/97, 22781/97, 22299/97
Decided on 11-8-1998
Counsel for the Parties :
For the Appellants : L. Nageshwara Rao, G.R.K. Prasad, D. Mahesh Babu and G. Prabhakar, Advocates.
For the Respondent : R. Venugopal Reddy, Sr. Advocate, T.N. Rao, P.P. Singh, Advocates.
For the Respondent in S.L.P. (C) No. 1623/98 : Ms. K. Amreshwari, Ms. N. Annapoorani, K. Ram Kumar, S. Srinivasan, Partaprai Durlabhji, Advocates.

Important Points
1. Permission of Transport Commissioner contemplated in Rule 258(2) of the Andhra Pradesh Motor Vehicles Rules, 1989 must be obtained before application for permit is filed for a route covered by scheme pub­lished.
2. Power of Transport Commissioner under Rule 258(2) to grant permission for extention of town service beyond 8 kilo­metres cannot be exercised in such way to convert town service into a muffasal service.

Headnote:Andhra Pradesh Motor Vechicles Rules, 1989-Rule 258-Motor Vehicles Act, 1988-Sections 100 and 104-Stage permit for town service-Scheme for grant of-Permission of Transport Commissioner contemplated in Rule 258(2) -Must be obtained before application for permit is filed for a route-Grant of permit and issue of permit are not same-Actual issue of permit only ministerial - Cannot be equated to grant of per­mit.

       Held : Rule 258 uses the expression “town service”. Sub-rule (1) enjoins the Regional Transport Authority to fix stages on all bus routes except town service after consultation with such other authority as it may deem desirable. Sub-rule (2) directs the Regional Transport Au­thority to determine which are town service routes subject to the restrictions mentioned therein. There are three res­trictions set out in the sub-rule.

       (a) At least one terminus of every town service shall lie within the municipal limits or any built up place notified in the State Gazette as “town” for the purpose of the rule by the said authority with the prior concurrence of the State Transport Authority.

       (b) The route of town service shall not extend more than 8 kilometres beyond the municipal limits or town limits but such restriction shall not apply to town service routes which already existed on the date of coming into force of the rules or in respect of which routes specific permission of the Transport Commissioner is obtained.

       (c) No route shall be determined as both town and muffasal service routes. The expression “town service” has not been used in any other rule or any provision in the Act. The expression has not been defined anywhere.

       Our attention has been drawn to Sections 70 and 71 of the Act which provide for application for stage carriage permit and prescribe the procedure in considering the said application. Neither section throws any light as to what is a “town service route”. On the other hand Section 71(3)(a) refers to city routes in towns with a population of not less than five lakhs. We have also been taken through Rules 171 to 174 and 179. There is no guidance in any of the said rules with refer­ence to the expression “town service”. There is no prescribed form of application for permit for a town service route; nor is there any prescribed form of permit. In the normal connotation, ‘town service route’ would mean a route within a town to enable passengers to go from one place to another in the town. But generally people in the peripheral and neighbouring areas would be frequenting the town and to serve them, buses have to ply between a place in the town and a place outside. Hence, the rule provides for an extension of 8 kms beyond the limits of the town or municipality. Bearing that in mind we have to construe Rule 258(2) in the light of Sections 98 to 100 and 104 of the Act. Section 98 provides that the provisions of Chapter VI and the rules and orders made thereunder shall have overriding effect against anything inconsistent in Chapter V or any other law for the time being in force. Section 99 deals with preparation and publication of proposals regarding road transport service of a State Transport Undertaking. Section 100 deals with publication of proposal and a notification of the scheme after consid­eration of the objections to the proposal. Section 104 as stated earlier, prohibits the grant of any permit except in accordance with the provisions of the scheme. Hence for the purpose of Rule 258(2), if there is a scheme in force with reference to the concerned route, the authority has to adhere to the terms of the scheme. If there is an absolute bar in the scheme against the grant of any permit for the notified route or any portion of the route nothing further could be done. On the other hand if there is any exception provided in the scheme the applicant for a permit has to satisfy the authority con­cerned that he would fall within the scope of the exception. When the scheme provides an exception for the holder of stage carriage permit in respect of town service any applicant for permit claiming the benefit thereof has to necessarily satisfy the Regional Transport Authority that the route for which the permit is sought is a town service route. In order to establish the same the applicant for permit has to approach the Transport Commissioner in the first ins­tance if the route for which permit is sought extends more than 8 kilometres beyond the limits of the municipality or town from which it starts. In such cases, it is only when the Transport Commissioner grants specific permission for extension of the route for more than 8 kilometres beyond the limits of the municipality or town, the Regional Transport Authority can consider the application for grant of permit and proceed to pass orders. It is only on the basis of the Transport Commissioner’s permission the Regional Transport Authority can deter­mine the town service routes. Hence our answer to the first question is that the permission of the Transport Commissioner contemplated in Rule 258(2) of the rules has to be obtained before an application for permit is filed for a route covered by a scheme notified under the Act. (Paras 7 to 10)

       Held further : Admittedly in none of these cases such permission was obtained. Learned counsel for the respondents contended that in all these cases the actual issue of permit was after the grant of permission by the Transport Commissioner and there was no violation of the rule. Accord­ing to him, grant of permit and issue of permit are the same. The argument is fallacious. The grant of permit in these cases is by the Tribunal before the grant of permission by the Transport Commissioner. The Tribunal itself directed issue of permit by the Secretary to the R.T.A. after receipt of re­cord evidencing Transport Commissioner’s permission. The actual issue of permit was only a ministerial act and it cannot be equated to the grant of permit. The Tribunal acted beyond its jurisdiction in granting permits in all these cases. (Para 11)

       (ii) Andhra Pradesh Motor Vechicles Rules, 1989-Rule 258-Stage permit for town service-Extention of town service beyond fixed kilometre-Scope of powers of Transport Commissioner-Power not unlimited-Power is coupled with duty-Exercise of power to grant permission for extension of town service beyond 8 kilometre fixed in scheme published cannot have effect of converting town service into muffasal service-He cannot convert an exception into a rule.

       Held : There is no doubt that Rule 258(2) does not specify or indicate the limits of the power of the Transport Commissioner but it is certainly erroneous to think that the power of the Transport Commissioner is unlimited. If that is so, the very purpose of the rule providing for a limit of 8 kilometres of extension beyond the limits of municipality or town will be defeated. The power of the Commissioner cannot be arbitrarily or indiscriminately exer­cised. According to learned counsel for the appellant, the power is coupled with a duty. (Para 12)

       Learned counsel for the appellant has pointed out rightly that in these cases the Transport Commissioner has granted permission for extension of the town service route by not less than 12 kilo­metres excepting in one or two cases. The tabular statement reproduced by us earlier shows that the extension is not only much more than 8 kilome­tres beyond the municipal limits but also the overlapping on the notified route is more than 12 kilometres excepting in one or two cases. Thus it is evident that the Transport Commissioner has not applied his mind to the relevant factors in these cases. (Para 16)

       Though we do not propose to fix any specific limit upto which the Transport Commissioner can extend the town service route it must be pointed out that in no case the permission granted by the Transport Commissioner should have the affect of converting a town service route into a muffasal service route. In other words a muffasal service cannot be labelled as town service by virtue of the permission granted by the Transport Commissioner though in fact it would be a muffasal service. Apart from the above guidelines, the Transport Commissioner must also bear in mind that in the case of a route covered by a notified scheme grant of permits to any other person is barred except to the extent permitted by the scheme. The Transport Commissioner should, therefore, take care not to convert an exception into a rule. He must bear in mind the provisions of Chapter VI of the Act and see that they are not made illusory by the permission for extension of town service granted by him. (Para 18)

       The power of the Transport Commissioner to extend a town service route more than 8 kilometres beyond the limits of the munici­pality or town is to be exer­cised in an appropriate manner in accord­ance with the guidelines set out in para 18 above. (Para 20)