ORDER

1. Leave granted.

2. The dispute in this case relates to Lucknow- Kursi- Tikaitganj route in the State of Uttar Pradesh. It is not disputed that a scheme was published under Section 68-0 of the Motor Vehicles Act, 1939, which is equivalent to sub-section (3) of Section 100 of the Motor Vehicles Act, 1988, in respect of this route and it is a notified route. It is also not disputed that the State transport undertaking is operating on this route as per the notified scheme. It appears that this route was sought to be denotified by the State Government.

The notification proposing to denotify the route was challenged in the High Court by filing a writ petition which is pending in the High Court. During the pendency of the petition, the High Court has by an interim order directed the denotification to remain stayed. Thus, factually as on the day, the scheme as to the abovesaid notified route stands and is in operation.

3. The respondents herein filed an application before the Regional Transport Authority for the grant of temporary permit on this route. The prayer was declined, whereupon the respondents filed a writ petition in the High Court. The High Court has disposed of the writ petition by directing the Secretary of the Regional Transport Authority to make a survey of the route within a week from the date of the order and if the survey reveals the need for the grant of additional permits then the same shall be issued to the applicants.

It is this order of the Division Bench of the High Court which has been put in issue by the U.P. State Road Transport Corporation by filing this appeal by special leave.

4. Having heard the learned counsel for the parties, we are satisfied that the impugned order of the High Court cannot be sustained.

5. Section 104 of the Motor Vehicles Act, 1988 reads as under:

"104. Restriction on grant of permits in respect of a notified area or notified route.-Where a scheme has been published under sub-section (3) of Section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme:

Provided that where no application for a permit has been made by the State transport undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State transport undertaking in respect of the area or route." The respondents seek protection under the proviso. The applicability of the proviso is attracted "where no application for a permit has been made by the State transport undertaking in respect of any notified area or notified route in pursuance of an approved scheme". It is not disputed that the State transport undertaking has certainly made an application for permit in accordance with the scheme and is operating on the route. Whether or not the number of buses and the trips operated by the State transport undertaking were enough to cater to the volume of need of the commuting public, is not germane to the applicability of the proviso. The scheme provides for as many permits as needed being lifted by the State transport undertaking. The State transport undertaking was operating 36 trips on the date of the order of the High Court and is now operating 40 trips, as stated by the learned counsel for the appellants at the Bar. However, the learned Senior Counsel for the respondents has disputed the correctness of this statement and submitted that the Secretary, Regional Transport Authority had found only 25 trips being in operation. Be that as it may, we are not inclined to hold that in spite of the appellant Corporation operating on the route resort