Section 104(1) of the Motor Vehicles Act, 1988 read with the provisions of the scheme prohibits the grant of any permit except in accordance with the provisions of the scheme.

K. A. SWAMI, C.J.

These two appeals are preferred against the common order dated 19th September, 1991 passed by the learned single Judge dismissing Writ Petition Nos. 13167 and 13168 of 1991 filed by the appellant herein, which is a State Transport undertaking though it is a Transport Corporation plying two stage carriages in the Town Service Route from Kumarapalayam to Erode Collectorate viz. Bhavani, Erode Bus Stand and Erode Government Hospital.

2. It is not in dispute that covering the route in question, a draft scheme was published and it was approved and the approved scheme was published on 27-6-1990. However, this Court struck down the said scheme by the order dated 31-10-1990. After the scheme was struck down, the third respondent in each one of the appeals, who was an existing operator on the route in question, applied for variation of the conditions of permit by inclusion of additional vehicle to run additional service. The Regional Transport Authority rejected the variation sought for on 14-10-1987, whereas on 5-8-1991 the State Transport Appellate Tribunal allowed the appeal and granted the variation. As pointed out, on 31-10-1990, the scheme itself had been struck down by this Court.

3. The appellant-Corporation challenged the variation granted to the third respondent in each one of these appeals in W.P. Nos. 13167 and 13168 of 1991. The learned single Judge, relying upon Rule 208 of the Tamil Nadu Motor Vehicle Rules, has dismissed the writ petitions, holding that it was permissible to grant variation of the conditions of permit by inclusion of an additional vehicle to run additional service on the route. Hence, aggrieved by the aforesaid order, the appellant has preferred these appeals.

4. It may be pointed out here that during the pendency of the writ appeals, the judgment of this Court has been reversed by the Supreme Court and the scheme has been upheld on 17-4-1993. As a result of upholding of the scheme, the scheme must be deemed to have been in force from the date it was published viz. 27-6-1990. That being so, the date on which the variation in question was granted by the State Transport Appellate Tribunal, viz. 5-8-1991, the scheme must be deemed to have been in force. As per Section 104 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act"), after the scheme is published under sub-section (3) of Section 100 in respect of a notified area of 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. It is not the case of respondent No. 3 in each one of these writ appeals that this scheme provided for granting variation of the conditions of the permit by inclusion of an additional vehicle to perform additional service to an existing operator. No it is their case that the scheme does not exclude the private operators. When the scheme does not provide for any such variation of the conditions of the permit, and it is the scheme of total exclusion, there is a bar for granting such variation. Chapter VI of the Act overrides the provisions contained in Chapter V of the Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law. Chapter VI of the Act deals with special provisions relating to State Transport Undertakings. Section 104 which falls under Chapter VI of the Act is equivalent to Section 68-FF of the 1939 Act. In fact, Chapter VI of the Act is equivalent to Chapter IV-A of the 1939 Act, which contained more or less the provisions similar to those contained in Chapter VI of the Act. Section 68-F in Chapter IVA of 1939 Act came up for consideration before the Supreme Court in M/s. Adarsh Travels Bus Service v. State of Uttar Pradesh, 1986 AIR(SC) 319, 1985 (3) SCR 661, 1985 (4) SCC 557, 1985 (2) SCALE 880, 1986 All(LJ) 215 in which it was held as follows (at page 323) (of AIR) :

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