RAJ TRANSPORT CO. PVT. LTD., AMRITSARversusSTATE TRANSPORT APPELLATE TRIBUNAL PB. & ORS.

                    [2010] 13 (ADDL.) S.C.R. 868


A          RAJ TRANSPORT CO. PVT. LTD., AMRITSAR
                                   v.
    STATE TRANSPORT APPELLATE TRIBUNAL PB. & ORS.
             (Civil Appeal No. 9762 of 2010 etc.) •
                        NOVEMBER 19, 2010
B
            [DR. MUKUNDAKAM SHARMA AND ANIL
                       R. DAVE, JJ.]

          Motor Vehicles Act, 1988 - ss. 104, 99 to 103 -
C   Applicability of new Transport Scheme to pending cases -
    Restriction on grant of permits in respect of a notified area or
    notified route - Four stage carriage permits for plying -
    Invitation of applications by State Transport Commissioner
    before enactment of 1988 Act - Grant of two permits to Pepsu
D   State Transport Corporation - Withholding of two permits -
    Claim for grant of said two permits by private operators -
    During pendency of appeals, Motor Vehicles Act, 1939
    repealed by Motor Vehicles Act, 1988; and new Transport
    Scheme coming into operation whereby all future operations
E   of the monopoly route would be operative by State Transport
    Undertaking - Dismissal of appeals by courts below, in view
    of the 1988 Act and new Transport Scheme - Held: Justified
    - 1988 Act would be applicable and would govern cases in
    respect of two permits for which applications were pending
F   before appellate tribunal on the date when 1988 Act came
    into force - Relevant date is the date of the grant of the permit
    and such date cannot relate back to any earlier period -
    When the provision was inserted, private operators had no
    permit granted in their favour by Regional Transport Authority
G   - Factually it was granted only after promulgation of the
    Scheme - Thus, the said Scheme does not give any
    protection or benefit to private operators - Motor Vehicles Act,
     1939.
         In the year 1988, the State Transport Commissioner
H                                 868
RAJ TRANSPORT CO. PVT. LTD. v. STATE TPT APPELLATE 869
                  TRIBUNAL PB.

invited applications for grant of four stage-carriage A
permits for plying two return trips daily on the Samana-
Amritsar route. The appellants and the Pepsu Road
Transport Corporation (PRTC) applied for the permit. The
State Road Transport Corporation granted only two
stage carriage permits to PRTC and withheld the B
remaining two permits. The appellants and others filed
appeals. Meanwhile, the Motor Vehicles Act, 1939, which
governed the proceedings, was repealed by the Motor
Vehicles Act, 1988. A new transport Scheme was also
introduced whereby all future operations of the monopoly c
route would be operative by State Transport Undertaking.
The appellate tribunal granted two permits to the four
appellants. In the writ petitions, the Division Bench of
High Court remitted the matter back to the appellate
tribunal. The appellate tribunal upheld the grant of the two
                                                             0
permits to PRTC. With regard to the two permits withheld
by the STC, it was held that the same could not be
granted to the appellants, since, after coming into force
of the Transport Scheme, the said route ·tell on the
monopoly route of Punjab Roadways and PRTC. The
High Court upheld the order passed by the appellate E
tribunal. Therefore, the appellants filed the instant
appeals.
    Dismissing the appeals, the Court
    HELD: 1.1 On reading Section 104 with the
                                                              F
provisions of Section 98, sub-section (2) of Section 99
and Sections 102 and 103 of the Motor Vehicles Act,
1988, it is clear that the provisions of the new Act, which
came into operation, would be applicable and govern the
cases in respect of the two permits for which appeals         G
were pending before the appellate tribunal on the date
when the said new Act came into force. During the
pendency of the said appeals also the new Transport
Scheme came into operation and, therefore, the claim of
the appellants for grant of two permits which was             H
    870   SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.

A pending before the appellate tribunal was governed in
  accordance with the provisions of the Motor Vehicles Act,
  1988 read with the Scheme which was promulgated and
  was operative and functioning. The relevant date is the
  date of the grant of the permit and such date cannot
B relate back to any ear!ier period when the order was
  passed by the State Transport Commissioner, particularly,
  in view of the amendment which gives emphasis on the
  date of grant of the permit, which factually came to be
  granted only after promulgation of the Scheme. [Para 14]
C [876-G-H; 877-A-D]
       1.2 The Scheme was introduced in the year 1990 and
  the said substitution of a new clause in place of old
  clause (4) was brought about in the year 1997 and in the
  said modification/provision it was clearly provided that
D only those permits which were granted by the Regional
  Transport Authority before coming into force of the
  Scheme to the private operators for operating on
  monopoly routes, wholly or on portion thereof would
  remain unaffected. As on the said date, when the said
E provision was inserted, the appellants had no permit
  granted in their favour by the Regional Transport
  Authority and, therefore, it must be held that the
  appellants had no permit in their favour granted by the
  Regional Transport Authority before coming into force of
F the Scheme. Consequently, the said Scheme does not
  give any protection or benefit to the appellants. In view
  of coming into force of the new Motor Vehicles Act, 1988,
  effective from 01.07 .1989, all the proceedings and
  particularly, the provisions of the Scheme would be made
G applicable even to the pending cases in terms of the
  provisions of Section 104 of the Motor Vehicles Act, 1988
  read with Sections 99 to 103 of the Act [Para 15] [877-E-
  H; 878-A-B]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 9762 of 2010.
 RAJ TRANSPORT CO. PVT. LTD. v. STATE TPT. APPELLATE 871
                   TRIBUNAL PB.

     From the Judgment & Order dated 12.02.2008 of the High       A
Court of Punjab & Haryana at Chandigarh in C.W.P. No. 297
of 2007.
                            WITH

C.A. Nos. 9763 & 9764 of 2010.                                    B

    Altaf Ahmad, J. Lal Gupta, Kawaljit Kochar, Ashok K.
Sharma, Kusum Chaudhary, Rani Chhabra, B.S. Giri for the
Appellant.

    Kuldip Singh, R.K. Pandey, Ajay Pal, K.K. Mohan for the
                                                                  c
Respondents.

    The Judgment of the Court was delivered by

    DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.                   D

     2. As all these appeals deal with similar facts and the
issues involved are almost identical, we propose to dispose
of these appeals by this common Judgment and Order.

     3. These appeals are filed by the appellants herein being    E
aggrieved by the Judgment and Order passed by the Punjab
& Haryana High Court dismissing their writ petitions while
affirming the Judgment and Order passed by the State
Transport Appellate Tribunal, Punjab, Chandigarh. These
appeals arise out of the similar facts, which we propose to       F
recapitulate herein.

     4. In 1988, the State Transport Commissioner, Punjab
(hereinafter referred to as 'the STC') issued a notification,
which was also published in the Motor Transport Gazette           G
(weekly) Chandigarh, inviting applications for grant of four
stage-carriage permits for plying two return trips daily on the
Samana-Amritsar (via Bhawanigarh, Nabha, Malerkotla) route.
In response to the said notice published, 15 applications,
including applications of the appellants and one of the
                                                                  H
    872    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   respondents, namely, Pepsu Road Transport Corporation
    (hereinafter referred to as 'PRTC') were received. As per
    Rules, the contents of those applications were published in the
    Motor Transport Gazette (Weekly), Chandigarh, for inviting
    objections, if any. Thereafter, all the applicants were considered
B   on merits by the STC and after hearing all the applicants, the
    order was reserved on 29.11.1988. The same came to be
    pronounced on 10.12.1988, whereby in public interest only two
    stage carriage permits with one return trip daily were granted
    to PRTC, one of the respondents herein, on the ground •hat the
c   said PRTC was having experience and knowledge of the route.
    The remaining two permits were withheld.

       5. Against the aforesaid order passed, the appellants
  herein and some other aggrieved persons filed five separate
  appeals. It may be stated herein that when the aforesaid orders
D were passed by the STC, the proceedings were governed by
  the provisions of the Motor Vehicles Act, 1939. The aforesaid
  Act of 1939, however, came to be repealed by the Motor
  Vehicles Act, 1988 which came into force effective from
  01.07.1989. The aforesaid appeals filed by the appellants
E herein and others were considered by the Appellate Tribunal
  and the same were disposed of by a common order passed
  on 08.01.2003. By the said order, the appeal filed by the Indian
  Bus Service (Regd.), Malerkotla, was dismissed as being
  barred by limitation, whereas the appeals filed by the other four
F appellants including the appellants herein were allowed holding
  that since two permits were available, therefore, the same be
  granted to four appellants with half return trip daily on the route
  in question. The Appellate Tribunal passed a detailed reasoned
  order for granting benefit to the four appellants.
G
          6. Feeling aggrieved by the aforesaid order, two writ
    petitions were filed in the Punjab and Haryana High Court. CWP
    No. 3314 of 2003 was filed by the Indian Bus Service (Regd.),
    Malerkotla whereas CWP No. 10661 of 2003 was filed by the
H   PRTC. In CWP No. 3314 of 2003, Indian Bus Service (Regd.)
RAJ TRANSPORT CO. PVr. LTD. v. STATE TPT. APPELLATE 873
     TRIBUNAL PB. [DR. MUKUNDAKAM SHARMA, J.]

Malerkotla challenged that its appeal was wrongly dismissed            A
as time-barred and that its claim for grant of permits on the
route in question was not considered. Whereas in CWP No.
10661 of 2003, PRTC challenged the order of granting of two
permits with half return trip daily on the route in question to four
appellants, on the ground that it had applied for grant of all the     B
four permits and now after coming into force of the Act of 1988
and also after introduction of the new Transport Scheme of the
State, the PRTC being a State Transport Undertaking is solely
entitled to all the permits for the route, which is a monopoly
rou~.                                                                  c
     7. A Division Bench of the Punjab and Haryana High Court
vide its order dated 04.08.2006, allowed the writ petitions and
set aside the order dated 08.01.2003 and remitted the matter
back to the Appellate Tribunal to decide the entire dispute
afresh in acLordance with law. In the said order, it was also          D
recorded by the High Court that the Appellate Tribunal had
committed an error of jurisdiction by granting two permits with
half return trip daily to four applicants, without recording any
reason and without inviting applications for those permits.
                                                                       E
      8. After the remand, the Appellate Tribunal, vide its
Judgment and Order dated 04.12.2006 dismissed all the five
appeals including the appeals filed by the present appellants.
In the said order it was recorded by the Appellate Tribunal that
keeping in view the public interest, the two permits, with one         F
return daily, were rightly granted to PRTC, who had prior
experience and knowledge of the route, being the extant
operator. In so far as the remaining two permits are concerned,
which were withheld by the STC, it was held that after coming
into force of the Transport Scheme as notified on 09.08.1990,          G
which was subsequently modified vide notification dated
21.10.1997, it has to be give effect to, as the same is
applicable and in light of the same, the route could not have
been granted to the private operators because a stretch of 83
Kms. of the route in question falls on the monopoly route of
                                                                       H
    874   SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A   Punjab Roadways and PRTC. Such a conclusion stemmed
    from the Transport Scheme, whereby only 20% or upto to a
    distance of 15 Kms. of the monopoly route (whichever is less)
    can be permitted to be operated by the private operators, and
    therefore it was held under the Transport Scheme that the
B   appellants are not entitled to grant of any permit.

         9. As against the aforesaid order passed by the Appellate
    Tribunal, writ petitions were filed once again before the High
    Court by the present appellants, which were heard, and by a
    detailed Judgment and Order passed on 12.02.2008, the said
C   writ petitions were dismissed. Being aggrieved by the said
    0rder three special leave petitions were filed in this Court on
    which notices were issued.

       10. We heard learned counsel appearing for the parties
D who had taken us through the documents on record. Counsel
  appearing for the appellants submitted that both the Appellate
  Tribunals as also the High Court while passing their orders,
  unfortunately ignored the proviso of clause (4) of the Notification
  dated 21.10.1997, which modified the earlier Notification dated
E 09.08.1990. It was submitted that in view of such error apparent
  on the face of the record and omission on the part of the
  Appellate Tribunal as also of the High Court, in ignoring the
  relevant provision which applies to the facts and circumstances
  of the present case, both the decisions are required to be set
F aside and quashed. Another submission which was advanced
  was that since the process of inviting applications as also the
  process for grant of permit were initiated prior to the coming
  into force of the new Motor Vehicles Act, 1988, it must be
  presumed that in the proceedings in the present case, the law
G that was applicable was the provisions of the old statute of the
  Motor Vehicles Act, 1939, and therefore, the new scheme
  cannot be said to be applicable to the facts and circumstances
  of the present case.

         11. The aforesaid submissions of the counsel appearing
H   for the appellants were, how~ver, refuted by the counsel
RAJ TRANSPORT CO. PVf LTD. v. STATE TPT. APPELLATE 875
     TRIBUNAL PB. [DR. MUKUNDAKAM SHARMA, J.]

appearing for the respondents. Our attention was drawn to the     A
provisions of clause (4) of the notification by which a scheme
was introduced. The said provisions read as follows:

    "(4) All future operations on monopoly route shall be
    operated by the State Transport Undertaking."                 B
    Provided that a Private Operator may be

          Allowed to operate on a portion of twenty per cent
    of the monopoly route or up to the distance of fifteen
    kilometers of the said route whichever is less, where it is   c
    necessary or is in public interest to do so;

    Provided further that the permits granted by the

          Regional Transport Authority before coming into
    force of the scheme to the private operators for operating D
    on monopoly routes, wholly or on portion thereof on the
    routes in which the monopoly routes fall, shall remain .
    unaffected".

     12. Counsel for the appellants further relied upon the· E
second proviso to submit that the said proviso is applicable to
the facts and circumstances of their cases as appellants were
granted permit by the Regional Transport Authority before
coming into force of the scheme, and therefore, their cases to
operate even on monopoly routes wholly or on portion thereof F
would remain unaffected. The counsel submitted that although
appellants were granted permits to operate on the route in
question by an order dated 08.01.2003 passed by the
Appellate Tribunal, yet the said order would relate back to the
order passed by the STC as the order passed by the Appellate
Tribunal was in continuation of the proceedings before the State G
Transport Commissioner, Punjab.

    13. Undisputedly, the relevant scheme was introduced
under the provisions of Section 99 read with Section 100 of
the Motor Vehicles Act, 1988 (Central Act No. 59of1988) and       H
    876     SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   the same was published in the Gazette on 09.09.1990 by
    issuing a notification on 21.10.1997. Modifications were
    brought in to the aforesaid scheme and one of the
    modifications was insertion of the aforesaid clause (4), by
    substituting the earlier clause (4) of the scheme of 1990. The
B   Motor Vehicles Act, 1939 was repealed and the same was
    substituted by Motor Vehicles Act, 1988 that became effective
    from 01.07 .1989. Section 104 of the Motor Vehicles Act, 1988,
    which is relevant for the purpose of deciding the present case,
    is extracted below for ready reference:
c         "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
D         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
E         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
F         such permit shall cease to be effective on the issue of a
          permit to the State transport undertaking in respect of that
          area or route."

       14. When the aforesaid provision is read with the
  provisions of Section 98, sub-section (2) of Section 99 and
G Sections 102 and 103 of Motor Vehicles Act, 1988, it becomes
  obvious that the provisions of the new Act, which came into
  operation, would be applicable and govern the cases in respect
  of the two permits for which appeals were pending before the
  Appellate Tribunal on the date when the aforesaid new Act
H came into force. During the pendency of the aforesaid appeals
RAJ TRANSPORT CO. Pvr LTD. v. STATE TPT. APPELLATE 877
     TRIBUNAL PB. [DR. MUKUNDAKAM SHARMA, J.]

also the new scheme came into operation, and therefore, the         A
claim of the appellants for grant of two permits whit;h was
pending before the Appellate Tribunal was governed in
accordance with the provisions of the Motor Vehicles Act, 1988
read with the scheme which was promulgated and "Vas
operative and functioning. Therefore, the date when the             B
Appellate Tribunal passed the order dated 08.01.2003 granting
permits in favour of the two appellants would be the relevant
date on which the appellants were granted permits and it cannot
be said that the aforesaid permits, which were granted by the
order of the Appellate Tribunal dated 08.01.2003 would relate       c
back to the order passed by the STC. In our considered
opinion, the relevant date is the date of the grant of the permit
and such date cannot relate back to any earlier period,
particularly in view of the amendment which gives emphasis on
the date of grant of the permit, which factually came to be
                                                                    0
granted only after promulgation of the Scheme.

     15. Examining the matter from this angle, the said position
would be crystal clear. The scheme was introduced in the year
1990 and the aforesaid substitution of a new clause in place
of old clause (4) was brought about in the year 1997 and in         E
the said modification/provision it was clearly provided that only
those permits which were granted by the Regional Transport
Authority before coming into force of the scheme to the private
operators for operating on monopoly routes, wholly or on portion
thereof would remain unaffected. As on the said date, when the      F
aforesaid provision was inserted, the appellants had no permit
granted in their favour by the Regional Transport Authority and
therefore it must be held that the present appellants had no
 permit in their favour granted by the Regional Transport
Authority before coming into force of the scheme. Consequently,     G
the aforesaid scheme does not give any protection or benefit
to the appellants. In so far other contentions of the appellants
 are concerned. we have already answered the same in our
 discussion hereinbefore. In view of coming into force of the new
 Motor Vehicles Act, 1988, effective from 01.07.1989, all the       H
    878    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A   proceedings and particularly, the provisions of the scheme
    would be made applicable even to the pending cases in terms
    of the provisions of Section 104 of the Motor Vehicles Act,
    1988 read with Sections 99 to 103.

         16. Considering the facts and circumstances of the present
8
    case and the discussion made hereinbefore, we find no merit
    in these appeals, which are dismissed, but we leave the parties
    to bear their own costs.

    N.J.                                     Appeals dismissed.