ACHYUT SHIVRAM GOKHALEversusREGIONAL TRANSPORT OFFICER & ORS.

                   ACHYUT SHIVRAM GOKHALE
A
                              v.
               REGIONAL TRANSPORT OFFICER & ORS.
                         AUGUST 16, 1988

            [E.S. VENKATARAMIAH AND M.M. DUTT, JJ.]
B
          Motor Vehicles Act, 1939-Section 63(6)-Special permit-Right
    of person to obtain-Difference between contract carriage permit and
    special permit.

           On November 29, 1973 the Government of Maharashtra Notified
    a scheme approved under section 68-D of the Motor Vehicles Act, 1939
c   authorising the Maharashtra State Road Transport Corporation to
    operate contract carriage services in the entire area of the State of
    Maharashtra to the complete exclusion of all other persons except those
    falling under the seven categories mentioned therein. The appellant
    who did not belong to any one of the seven categories applied to the
D   Regional Transport Authority for a special permit under section 63(6)
    of the Act on the route Bombay to Shirdi for five days. This application
    was rejected because the appellant had not produced a 'No objection
    Certificate' from the State Road Transport Corporation. It was held by
    the Regional Transport Authority that in the absence ofa 'No Objection
    Certificate' no special permit could be issued under section 63(6) of the
E   Act.

           Tbe Maharashtra State Transport Appellate Tribunal allowed the
    appellant's appeal holdilll! that a special permit issued under section
    63(6) of the Act was llllt a contract carriage permit issued under the Act
    and that the scheme did not have the effect of preventing any person
F   frQm applying for a special permit under section 63( 6) to operate a
    p.ublic service vehicle on any of the routes in the State. The Corporation
    filed a writ petition in the High Court against the Tribunal's order. The
    High Court allowed the Writ Petition.

         Disposing of the appeal and setting aside the judgment of the
G   High Court, it was,

           HELD: ( l) A contract carriage permit and a special permit are
    not one and the same, though the special permit has some of the features
    of a contract carriage permit. [454E-F]

H         (2) A Special permit is ordinarily taken to meet a need that exists
                                       448
                              A.S. GOKHALE v. R.T. OFFICER                     449

          for a few days .like carrying a marriage party or persons going to a
                                                                                       A
          pilgrimage, etc. [454F]

                 (3) The distinguishing features of the two types of permits are: ( 1)
          A permit for which an application is made under section 49 of the Act
          and which is granted under section 51 of the Act is called a contract
          carriage permit. A permit issued under section 63(6) of the Act is called B
          a special permit; (2) while a contract carriage permit issued by a Re-
          gional Transport Authority of any one region is not valid in any other
 .,.
          region unless the permit has been countersigned by the Regional Trans-
          port Authority of the other region as provided under section 63(1) of the
          Act, a special permit issued by.one Regional Transport .~uthority under
          section 63( 6) of the Act is· valid in any other region or State
          without the countersignature of the Regional Transport Authority of          c
          the other region or the other State as the case may be; (3) While the
          duration of a contract carriage permit is as prescribed under section
          58( 1) of the Act, a Special permit can be issued only for a specific period
          which may be for a few days only in accordance with the rules pre-
          scribed for that purpose; and (4) A contract carriage permit is renew- D
          able under section 58(2) of the Act, but there is no corresponding pro-
          vision providing for renewal ofa special permit. 14548-E] ·

                 (4) The provision in the scheme which excludes operation of con-
         . tract carriage services by persons other than those who are permitted to
           do so under the scheme refers to only those persons who wish to operate     E
           contract carriage services under permits issued under section 51 of the
           Act. The scheme does uot in any way prevent the issuing of special
           pe1mits under section 63(6)" of the Act by the Regional Transport
           Authorities in accordance with law as it does any that holders of special
           permits under section 63(6) :.vould also be excluded from running the
           public service vehicles. [4578-C]                                           F

                 (5) The scheme does not provide that the clause regarding exclu-
          sion of other persons from operating contract carriages would cease to
          operate if the Corporatfon issued a 'No Objection Certificate'. The
          insistence on the production of a 'No objection Certificate' from the
          Corporation by a· person applying for a special permit under section         G
          63(6) of the Act was wholly unwarranted. l456H; 457 A-Bl

               Mohd. Basha and others v. The Secretary, Regional Transport
          Authority and Anr., A.I.R. 1975 A.P. 242; G. Shaikh Shavalli,
•.   '
          Uravakonda & Ors. v. The Secretary, Regional Transport Authority,
          Anantapur and Anr., A.I.R.1982 A.P. 29.6; S.R.M.S. Tourist Servic<           H
    450          SUPREME COURT REPORTS                (1988] S11pp. 2 S.C.R.

A   Co. Bangalore & Ors. v. 1he Secretary, Regional Transport Autho-
    rity, A.I.R. 1975 Karnataka 166; K.N. Sreekantaiah v. Deputy
    Transport Commissioner, Bangalore & Anr., (1979] 2 Karna.taka Law
    Journal 292; Adarsh Travels Bus Service & Anr. v. State of Uttar
    Pradesh & Ors., !i985] Supp. 3 S.C.R. 661, referred to.
B         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1622
    of 1987.
         From the Judgment and Order dated 23.6.1986 of the Bombay
    High Court in W.P. No. 562 of 1986.

        S.N. Kacker, Mrs. J. Wad and Mrs. Aruna Mathur for the
C   Appellant. .

         G. Ramaswamy, Additional Solicitor General, A.S. Bhasme,
    K.R. Nagaraja and R.S. Hegde for the Respondents.

          A. Mariarputham for the foterveper.
D
          The Judgment of the Court was delivered by

          VENKATARAMIAH, J. The question involved in this case re-
    lates to the right of a person to obtain a special permit under sub-
    section (6) of section 63 of the Motor Vehicles Act, 1939 (hereinafter
E   referred to as 'the Ace) to ply a public service vehicle on routes or
    portions thereof in respect of which a scheme approved under section
    68-D of the Act providing for exclusive operation of contract carriages
    on the said routes by a State transport undertaking to the complete
    exclusion of all other persons has been brought into force.

F         By a notification dated 29th November, 1973 published under
    section 68-D(3) of the Act by the Government of Maharashtra, the
    Maharashtra State Road Transport Corporation (hereinafter referred
    to as 'the Corporation') was authorised to operate contract carriage
    services in the entire area of the State of Maharashtra and on all routes



                                                                                -
    and portions thereof falling within the said area to the complete exclu-
G   sion of all other persons except those falling under the seven categories
    of persons mentioned therein, namely, (1) a State Transport Under-
    taking, as defined under section 68-A(b) of the Act; (2) holders of duly
    countersigned permits on inter-State routes save those falling under
    the second proviso to section 63( 1) of the Act; (3) holders of contract
    carriage permits for operation of motor cars; (4) holders of contract
    carriage permits granted for operation of air-conditioned vehicles
        A.S. GOKHALE v. R.T. OFFICER [VENKATARAMIAH, J.l              451

only; (5) holders of coniract carriage permits for operation of vehicles
 owned by them exclusively for transportation of person, employed by
 them· or students or members of their institutions from and to theu
 residences an.d respective places of work or study and for occasional
 tours and excursions; (6) holders of contract carriage permits for
 operation wholly within the municipal limits of Greater Bombay, and
 cities of Poona, Sholapur and Kolhapur where the municipal                   B
 authorities are operating road transport service; and (7) holders of
 contract carriage permits granted to them exclusively for the daily
 transportation at appointed hours and between specified terminals and
  pick up points of only the persons employed by or studying in
 establishments and institutions with which the said permit holders
  have $pecified contract for the purpose. The said scheme came into
 force on January, 1974. The appellant, who did not belong to any one
                                                                              c
 of the. above seven categories applied to the Regional Transport
  Authority, Bombay (C) for a special permit under sub-section (6) of
  section 63 of the Act in relation to the motor vehicle bearing No .
. MRL-8088 for ·plying it on the route Bombay to Ashtu Vinayak via
  Panvel, Mahad, Poona, Shirdi etc. for a period of five days, namely         D
  from 18.9.1985 to 22.9.1985 in Form P. Co. Sp. A in accordance with
  rule 80 of the Bombay Motor Vehicles Rules, 1959. The application
  made by the appellant for the special permit was rejected by the Sec-
  retary, Regional Transport Authority on the ground that the appellant
  had not produced a 'No Objection Certificate' issued by the Corpora-
  tion for the grant of a special permit by his Order dated 17.9.1985. It     E
  was also stated. that the Corporation being the operator having the.
  exclusive privilege in the entire area of Maharashtra State to operate
  contract carriages under the scheme it was the primary duty of the
  Corporation to provide transport facilities to the intending passengers
  and if it failed to do so, the Corporation could issue a 'No Objection
  Certificate' to enable other intending operators to enter into contract.    F
  Hence "it was held that in the absence of. the 'No Objection Certificate'
  issued by the Corporation no special permit could be issued under
  section 63( 6) of the Act. Aggrieved by the order passed by the
  Regional Transport Authority, the appellant filed an appeal under
  section. 64 of the Act before the Maharashtra State. Transport Appel-
  late Tribunal, Bombay. The Tribunal allowed the appeal holding that         G
  a special permit issued under section 63( 6) of the Act was not a con-
  tract carriage permit issued under the Act and that the scheme relied
  upon by the Corporation under which it had exclusive monopoly to
  operate con.tract carriages in the State of Maharashtra to the complete
  exclusion of all persons other than these who were specifically saved
  from the operation· of lhe scneme did not have the effect of preventing     H
     452         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

A any person from applying for a special permit under section 63(6) of
  the Act to operate a public service vehicle on any of the routes in the
  State of Maharashtra. The judgment of the Tribunal was delivered on
  December 19, 1983. Aggrieved by the judgment of the Tribunal, the
  corporation filed a writ petition in Writ Petition No. 562 of 1986 on the
  file of the High Court of Bombay questioning the correctness of the
B order of the Tribunal. The said Writ Petition was heard along with
  another Writ Petition which had been filed by the Corporation against
  M/s. Auto Hirers, Tardeo, Bombay and others in Writ Petition No.
  561of1986. By a common judgment the High Court allowed the Writ
  Petition and set aside the order of the Tribunal. This appeal by special
  leave is filed against the judgment of the High Court.
c       It is necessary to refer to some of the provisions of the Act at this
  stage. A 'contract carriage' is defined in section 2(3) of the Act as a
  motor vehicle which carries a passenger or passengers for hire or
  reward under a contract expressed or implied for the use of the vehicle
  as ~ whole at or for a fixed or agreed rate or sum (i) on a time basis
D whether or not with reference to any route or distance, or (ii) from one
  point to another, and in either case without stopping to pick up or set
  down along the line of route passengers not included in the contract,
  and includes a motor cab notwithstanding that the passengers may pay
  separate fares. An application. for a contract carriage permit is
  required to be made in accordane with section 49 of the Act which
E provides that an application for a permit to use one or more motor
  vehicles as a contract carriage or carriages shall contain the following
  particulars, namely, (a) the type and seating capacity of the vehicle or
  each of the vehicles, (b) the area for which the permit is required; (c)
  in the case of a motor vehicle other than a motor cab, the manner in
  which it is claimed that the public convenience will be served by the
F vehicle; and (d) any other particulars which may be prescribed.
  Section 50 of the Act specifies the procedure to be followed by the
     Regional Transport Authority in considering the application for con-
    tract carriage permit. It says that a Regional Transport Authority shall
    in considering an application for a contract carriage permit, have
    regard to the extent to which additional contract carriages may be
G necessary or desirable in the public interest; and shall also take into
    consideration any representations which may then be made or which
    may previously have been made by persons already holding contract
    carriage permits in the region or by any local authority or police au-
    thority in the region or by any local authority or police authority in the
    region to the effect that the number of contract carriages for which
H . permits have already been granted is sufficient for or in excess of the
        A.S. GOKHALE v. R.T. OFFICER {VENKATARAMIAH, J.}             453

needs of the region or any area within the region. Section 51 of the Act
                                                                            A
provides for grant of contract carriage permits. That section provides
that subject to the provisions of section 50, a Regional Transport
Authority, may, on an application made to it under section 49, grant a
contract carriage permit in accordance with the application or with
such modifications as it deems fit or refuse to grant such a permit. In
the event of the Regional Transport Authority deciding to grant a           B
contract carriage permit it can attach to the permit any one or more of
the conditions specified in sub-section (2) of section 51 of the Act.
Section 58 of the Act deals with the duration of a contract carriag~
permit. It provides that a stage carriage permit or a contract carriage
permit other than a temporary permit issued under section 62 of the
Act shall be effective without renewal for such period, not less than
three years and not more than five years, as the Regional Transport
                                                                            c
Authority may specify in the permit. Such a permit may be renewe<_l on
an application made and disposed of as if it was an application for a
permit under sub-section (2) of section 58 of the Act. Section.62 of the
Act lays down the provisions for grant of a temporary permit to be
effective for a limited period not exceedingfour months. Then follows       D
section 63 of the Act which deals with the validation of permits for use
outside the region in which granted. Sub-section (1} of Section 63
provides that except as may be otherwise prescribed, a permit granted
by the Regional Transport Authority of any one region shall not be
valid in any other region, unless the permit has been counter-signed by
the Regional Transport Authority of that ·other region, and a permit        E
grnnted in any one State shall not be valid in any other State unless
counter-signed by the State Transport Authority or that other State or
by the Regional Transport Authority concerned. Sub-section (6) of
section 63 of the Act with which we are concerned in this case reads
thus:
                                                                            F
                  "(6) Notwithstanding anything contained in sub-sec-
            tion (!),but subject to any rules that may be made under
            this Act, the Regional Transport Authority or any one
            region may, for the convenience of the public, grant a
            special permit in relation to a public service vehicle for
            carrying a passenger or passengers for hire or reward under     G
            a contract, express or implied, for the use of the vehicle as
            a whole without stopping to pick up or set do~n along the
            line of route passengers not included in the contract, and in
            every case where such special permit is granted, the
            Regional Transport Authority shall assign to the vehicle.
            for display thereon, a special distinguishing mark in the       H
    454         SUPREME COURT REPORTS                [19881 Supp. 2 S.C.R.

                form and manner specified by the Central Government and
A
                such special permit shall be valid in any other region or
                State without the countersignature of the Regional Trans-
                port Authority of the other region or of the State Transport
                Authority of the other State, as the case may be."

B         It is no doubt true that the special permit issued under sub-
    section (6) of section 63 of the Act has same of the features of a
    contract carriage permit but it is not the same as a contract carriage
    permit. The distinguishing features of these two types of permits are
    these: ( 1) A permit for which an application is made under section 49
    of the Act and which is granted under section 51 of the Act is called a
    contract carriage permit. A permit issued under section 63(6) of the
c   Act is called a special permit. (2) While a contract carriage permit
    issued by a Regional Transport Authority of any one region is not valid
    in any other region unless the permit has been countersigned by the
    Regional Transport Authority of the other region as provided under
    section 63( 1) of the Act a special permit issued by one Regional Trans-
D   port Authority under section 63(6) of the Act is valid in any other
    region or State without the countersignature of the Regional Trans-
    port Authority of the other region or the other State as the case may
    be. (3) While the duration of a contract carriage permit is as R_rescribed
    under section 58( 1) of the Act, a special permit can be issued only for a
    specific period which may be for a few days only as in the present case
E   in accordance with the rules prescribed for that purpose . (4) A con-
    tract carriage permit is renewable under section 58(2) of the Act, but
    there is no corresponding provision providing for renewal of a special
    permit. Thus it is seen that a contract carriage permit and a special
    permit are not one and the same. A special permit is ordinarily taken
    to meet a need that exists for a few days like carrying a marriage party
F   or persons going on a pilgrimage etc.

        The learned counsel for the Corporation relied upon two deci-
  sions of the Andhra Pradesh High Court, i.e., Mohd. Basha and
  Others v. The Secretary, Regional Transport Authorit)Nlnd·Another,
  A.LR. 1975 A.P. 242 and G. Shaikh Shavalli, Uravakonda and Others
G v. The Secretary, Regional Transport Authority, Anantapur and
  Another, A.LR. 1982 A.P. 296 in support of his contention that a
  special permit is not in any way different from a contract carriage
  permit. In the first case the question involved was whether it was open
  to a Regional Transport Authority to insist upon the furnishing of the
  names of passengers who were included in the contract. The High
H Court in that case held that the Regional Transport Authority was
        A.S. GOKHALE '- R.T. OFFICER IVENKATARAMIAH. J.]             455

entitled to call upon the applicant for a special permit to furnish the
                                                                            A
names of the passengers in order to satisfy itself that the application
was a genuine application for the purposes mentioned in section 63(6)
of the Act and was not intended to be a camouflage for using the
vehicle unauthorisedly and in deciding the said case the learned Judge.
who decided the case, no doubt referred to the common feature, that
existed between a contract carriage permit and a special permit.            B
namely, that the passengers could be carried in them only under a
single contract without stopping to pick up or to set down along the
line of the route passengers not including in the contract. In the second
case the question was whether it was open to the holder of a special
permit issued under section 63(6) of the Act to.take his bus empty from
his State into another State and to pick up passengers there and trans-
port them to the end of their voyage, set them down at their starting       c
point in the other State and drive the bus back to the home State
empty. The High Court said that the holder of a special permit could
not be permitted to do so since such a permit can be issued for carrying
passenger or passengers for hire or reward in a contract express or
implied for the use of the vehicle as a whole without stopping to pick      D
up along the line of the route passengers not included in the contract.
In these decisions it was enough to deal with one of the common
features that existed in a contract carriage permit and in a special
permit and the ratio of each of the said decisions depended on that
common feature. 'rhere was no necessity to examine all the features of
the two kinds of permits referred to above in order to determine            E
whether they were the same for all intents and purposes. In neither of
these two decisions the features that distinguished a contract carriage
permit from.a special permit have been considered. There was also no
consideration of the· question whether on the publication of an
approved scheme under section 68-0(3) of the Act_ excluding the
operation of contract carriages by persons other than the State Trans-      F
port Undertaking concerned special permit under section 63(6) of the
Act could or could not be issued.           ·

        On the other hand there are two decisions of the Karnataka High
  Court where a special permit issued under section 63(6) of the Act has
  been held to be different from a contract carriage permit issued under    G
  section 51 of the Act. In S.R.M.S. Tourist Service Co., Bangalore qnd
 Others v. The Secretary, Regional Transport Authority, A.LR. 1975
  Karnataka 166 the State Government had published a scheme under
  section 68-C of the Act proposing to nationalise contract carriage
  services. The question for consideration before the Court was whether
. after the publication of the said scheme it was open to the Regional      H
    456          SUPREME COURT REPORTS                 [ 198&J Supp. 2 S.C.R.

A   Transport Authority to grant a special permit under section 63( 6) of
    the Act. K. Jagannatha Shetty, J. (as he then was) taking into consi-
    deration the peculiar features of a special permit took the view that it
    was impossible to reach the conclusion that the Legislature intended to
    equate a cortract carriage permit with a special permit and held that
    one was totally different from the other. He accordingly held that the
B   publication of a scheme under section 68-C of the Act proposing to
    nationalise contract carriage service was not an impediment for the
    grant of permits under sectidn 63(6) of the Act in respect of the routes
    covered by the scheme. In K.N. Sreekantaiah v. Deputy Transport
    Commissioner, Bangalore & Another, Il979] 2 Karnataka Law Journal
    292 a Division Bench of the Karnataka Hign Court, has taken the view
    that a special permit issued under section 63( 6) of thv Act was diffe-
c   rent from a contract carriage permit issued under section 51 of the Act.
    While doing so it approved. the decision of Jagannatha Shetty, J refer-
    red to above. We are in agreement with the decisions of t:;o "arnataka
    High Court. We hasten to add that the conclusions reached in the two
    Andhra Pradesh. High Court decisions are also correct. It is open to the
D   Regional Transport Authority if it wishes to do so to insist upon the
    furnishing of the names of passengers, who are proposed to be carried
    in a bus under the special permit fur which an application is made and
    also that a holder of a special permit cannot run his bus empty to
    another State to pick up passengers, who are not covered by the con-
    tract, there, to drop them in that State at the end of the journey and to
E   return to his own State where he had obtained the special permit in an
    empty bus, because these two conclusions are based on the condition
    to be found in section 63(6) itself which provides that a holder of a
    special permit cannot pick up or set down on the route passengers nor
    covered by the contract.

F         In the present case the High Court of Bombay erred in not taking
    note of the distinguishing features that existed between a contract
    carriage permit and a special permit. It is significant that in the State of
    Maharashtra the Regional Transport Authorities had not taken the
    view until the High Court pronounced this judgment that in no event a
    special permit could be issued to a person other than the Corporation
G   and the. seven classes of persons who were excluded from the operation
    of the ·scheme. They were issuing special permits to such persons on
    the production of a 'No Objection Certificate' issued by the Corpora-
    tion. A special permit could riot be issued after the publication of the
    approved scheme even when the Corporation had issued a 'No Objec-
    tion Certificate' because the scheme did not provide that the clause
H   regarding exclusion of other persons from operating contract carriages
         A.S. GOKHALE v. R.T. OFFICER [VENKATARAMIAH, J.)          457

would cease to operate if the Corporation issued a 'No Objection A
Certificate'. The insistence on the production of a 'No Objection
Certificate' by the Corporation by a person applying for a special
permit under section 63( 6) of the Act was therefore wholly unwar-
ranted, We are of the view that th~ provision in the scheme which
excludes operation of contract carriage services by persons other than
those who are permitted to do so under the Scheme refers to only B
those persons who wish to operate contract carriage services under
permits issued under section 51 of the Act. The scheme does not in any
way prevent the issuing of "Sp"ecial permits under section 63(6) of the
Act by the Regional Transport Authorities in accordance with law as it
does not say that holders of special permits under section 63(6) would
also be excluded from running the public service vehicles on the rates
in question. It now becomes obvious that the. decision in Adarsh
                                                                        c
 Travels Bus Service and another v. State of Uttar Pradesh & Others,
 [1985] Supp. (3) S.C.R. 661 on which the High Court has relied has no
application at all to the case on hand. That decision would have been
relevant if a contract carriage permit and.a special permit were of the
same type.                                                              0

       We, therefore, set aside the judgment of the High Court of
Bombay against which this appeal is filed. Since the period in respect
of which the special permit was sought, has expired, there is no neces-
sity to issue a writ directing the Regional Transport Authority to con-
sider the application of the appellant· for a special permit again.        E
Hence, we d_o not issue any such direction. The true legal position•has,
however, been set out.above.

      The appeal is accordingly disposed of. No costs.

R.S.S.                                             Appeal disposed of.