Civil Misc. W. P. No. 8794 of 1996
HON’BLE MR. JUSTICE A.P. SINGH
1996 3 AWC 1308 All
For the Appearing Parties H.P. Dubey, Rajiv Sharma, Advocates.
A.P. SINGH, J.
Present writ petition involves a short but interesting question of law to be decided for the first time. The question is whether with the deletion of Section 47 (3) of Motor Vehicles Act, 1939 in the new Motor Vehicles Act of 1988 power of creation of route no more lies with the Regional or State Transport Authority.
2. For the purposes of proper appreciation of the question which needs to be decided in this case the facts of the case which are not in dispute have to be noticed.
3. Petitioner is an existing operator of stage carriage on Jamuna Bridge Muzaffar- Nagar via-Saharanpur Tapari-Sidki-Rampur-Bajheri-Sarwat Route (hereafter called the old route). Respondents 4 to 21, (hereafter the respondents) applied before Regional Transport Authority, Meerut, opposite-party No. 2 for grant or stage carriage permit on Muzaffar Nagar-Kuteshra-via-Sisauna-Naogaon-Khampur-Rohana- Baheri-Akhlaur-Pauti route, (hereafter called the new route). The new route which overlaps on part of the old route was not in existence (having not been created or classified) and the Regional Transport Authority in its meeting dated 2-6-1995 created the route and granted stage carriage permits to the respondents overlooking, ignoring the objection of petitioner. Petitioner then filed revision before opposite-party No. 1 challenging the power and authority of opposite party No. 2 to create route and grant permit to respondents thereon inter alia on the ground that power to create a new route vests with State Government and not with the Transport Authority; they also placed reliance on some interim orders passed by this Court in pending writ petition wherefrom petitioner tried to impress upon opposite-party No. 1 that since the question was in active consideration in identical matter before this Court therefore decision on the question should have not been made by the Regional Transport Authority, The opposite-party No. 1 after hearing the parties rejected petitioner’s contention that the Regional Transport Authority had no jurisdiction to create route according to it Regional Transport Authority was fully competent for that purpose subject to directions which the State Government could issue under the provisions of the new Act. Opposite-party No. I however, set aside the order of the Regional Transport Authority granting permit to respondents.
4. Petitioner has filed above writ petition against the part of the order of the State Transport Authority (hereafter S. TA.) upholding the power of Regional Transport Authority to create route.
5. In the background of the above facts, now it is necessary to notice the provisions of law having relevance on the point in issue:
Motor Vehicles Act, 1939 was enacted to control and regulate development of Road Transport in the country which was likely to expand with the framing of five years plans. Permit is required to ply a motor vehicle in public place, therefore, different types of permits including stage carriage permit is required for carrying passengers for hire and reward etc. in motor vehicle other than in motor cabs. Grant of permits in 1939 Act was regulated by the provisions in Chapter IV. In Chapter IV occurred section 47 which laid down procedure for considering applications for grant of stage carriage permits by Regional Transport Authorities of respective regions whereas Section 48 provides how such permits are granted. Section 46 lays down the manner of making applications for grant of stage carriage permit. Section 57 provides the procedure for applying and grant of permits of every nature. Similarly Section 45 provides for the general provisions as to applications which are made for grant of permits of every nature.
6. Clauses (1) and (2) of Section 45 provides for the place where the application has to be filed clauses (3) and (4) provide for deposit of security with the application. Section 46 provides for the particulars which are required to be given in the application for grant of stage carriage. First requirement is the mentioned the ‘route’ or ‘routes’ ‘area’ or ‘areas’ in respect whereof the application relates. The word ‘route’ has been defined in Section 2, clause (28-A) exhaustively. It reads as follows:
“it means a line of travel which specifies the highway may be traversed by a motor vehicle between one terminus and the other. ”
The word highway has not been defined in the Act. In English language the word ‘highway’ is known as ‘a passage’ Toad’, or street which every citizen (person) has a right to use. ‘ In its wider sense the word is used for all kinds of ‘public ways’ whether they be carriage ways, bridge ways footways, bridges, turnpike roads, rail roads, canals, ferries or navigable rivers.
7. From the meaning of word ‘route’ therefore it does not appear that an ap plication for permit has to be made only in respect of particular road or highway. Such an application as per Section 46 can be made in respect of a line of travel specifying the highway which applicant would like his motor vehicle to traverse between one point of that highway and another point, from Section 46 (a) it further appears that the application may not necessarily relate to a highway it may relate to” an area or areas. In Section 47 the Regional Transport Authority while considering applications for grant of stage carriage permit is required, inter alia, to have in his consideration, condition of roads which are included in the proposed route or area and interest of existing operators on that route in that area. In clause (3) of Section 47 Regional Transport Authority is empowered to limit the number of stage car riages on a route or in an area. Section 47 (3) read with the proviso of clause (3) of Section 57 empowers the Regional Transport Authority to reject an application for grant of stage carriage permit if he is of the opinion that grant of the permit would result in the increase of number of stage carriage permits already granted in that area or route or the region to which the application relates.
8. Thus overall picture which emerges from the (relevant) provisions of 1939 Act, which now stands repealed by 1988 Act, is that application for grant of stage carriage permit can be filed and permit can be granted in respect of a particular line of travel on a highway or area or areas between one point of travel and another for which no pre-determined area, road or route or highway is required. This clearly postulates that the applicant has to himself decide as to in which area or areas, road or roads highway or highways he wants his motor vehicle to transverse for picking up and setting down passengers for hire and reward etc. The Regional Transport Authority has no power to refuse to entertain an application which has been filed in respect of an area or route which is not known to that authority or
which so far had not been classified by appropriate authority for purposes of payment of tax. The route or the area for which application may relate may not be a route or area which is already being traversed by stage carriages having been granted permits. Now it has to be seen whether with the advent of 1988 Act position in this regard has changed so as to impose restriction on the permit seeker to devise his own route or area where he wants to ply his motor vehicle (stage carriage) with the aid of stage carriage permit and whether the Regional Transport Authority’s power to grant permit on a new route or in a new area has been curbed.
9. Definition of word ‘route’ in Section 2 (38) of 1988 Act has been retained as it was in 1939 Act.
10. Control of transport vehicles in 1988 Act occurs in Chapter V, Section 69 in this Chapter is pari materia to Section 95 in Chapter IV of 1939 Act. Similarly, Section 70 (a) of 1988 Act is to Section 46 (a) of 1939 Act. There is however a considerable change in Section 47 of 1939 Act. The equivalent of that in 1988 Act is Section 71 whereas equivalent of Section 57 of 1939 Act is Section 80 in 1988 Act. The two provisions read together curtail the absolute power of Regional Transport Authority to fix the number of vehicles which may ply on a route or in an area or the number of permits which could be granted on the route or area if the route or the area comes within city having population of not less than five lacs; strength of permits in such areas or routes can be fixed by the Regional Transport Authority or S. T. A. as the case may be only on the basis of directions issued by the State Govern ment by an order published in Gazette notification (see Section 71 (3)) so far as other routes or areas are concerned including any route or area in respect whereof directions as contemplated by Section 71 (3) of 1988 Act have not been issued per mits can be granted without regard being had to the number of permits already granted nor the Regional Transport Authority/s. TA. has power to fix any particular strength for grant of stage carriage permits on any route or area.
11. State Governments of respective States have been empowered by Section 43 of 1939 Act and Section 67 of 1988 Act to control road transport. The power conferred in that regard on the State Government has not been changed and same powers which were given in Section 43 of old Act have been given to the State Government by Section 67 of New Act. The State Government under the provision has been empowered to issue orders published in official Gazette regarding certain matters to transport authorities who are under legal obligation to carry out those directions [see Section 68 (3)]. The directions which can be issued under Sections 67 and 68 have nothing to do with identification of area or route in respect of which permit is applied and is to be granted.
12. However, by Motor Vehicles Amendment Act, 1994 (Act No. 54 of 1994) enforced on 14-11-1994 clause (c-a) was added in sub-section (3) of Section 68 after clause (c).
Clause (3) of Section 68 after amendment reads as follows :
” (3) The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under Section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following powers and functions, namely:
(a) to co-ordinate and regulate the activities and policies of the Regional Transport Authorities, if any of the State.
(b) to perform the duties of the Regional Transport Authority where there is no such authority and if it thinks fit or if so required by a regional Transport Authority to perform those duties in respect of any route common to two or more regions.
(c) to Settle all disputes and decide all matters in which differences of opinion arise between Regional Transport Authorities.
(c-a) Government to formulate routes for plying stage carriage; and
(d) to discharge such other functions as may be’ prescribed. ”
A reading of clause (3) of Section 68 of the 1988 Act after its amendment by Act No. 54 of 1994 will bear out that there are two parts in it. In the first part the STA and RTA both are under obligation to give effect to the directions, which is given by the State Government under Section 67′ while exercising their respective powers under the Act; in the other part the S. T. A. has been authorised to exercise and discharge throughout the State the powers and functions enumerated in sub-clauses (a) to (d of clause (3) of Section 68. The powers and functions provided under sub-clauses (a to (d) are required to be discharged or performed by the S. T. A. are also subject to the directions of the State Government issued (notified) under Section 67 except it is provided otherwise. The functions and powers mentioned in sub- clauses (a), (b) and (d) are only to be performed by the S. T. A. however so far power under sub-clause (c- a) is concerned it does not on the fact appear to be one which is to be exercised by the State
Government, but so as to give it appropriate meaning keeping in mind the subject and the context. Wherein it has been placed and also applying the principle of ejusdem generis the only interpretation which possibly can be given to it is that the S. TA. shall create the routes for plying of stage carriages throughout the State on the principles which are formulated by the State Government.
13. The power to create route for plying of stage carriages, after November, 1994 when sub-clause (c-a) came into force, cannot therefore be exercised by the R. T. A. ; such power has to be exercised by the S. T. A. only, obviously on the prin ciples formulated by the State Government. Thus R. T. A. which was exercising power or creation of new routes before 14th November, 1994 ceased to possess such power.
14. This conclusion though is not clearly conveyed from the express which have been used in sub-clause (c-a) but when interpreted and understood in the context in which the sub-clause has been placed in Section 68 (3) there can be no conclusion other than the one drawn herein above.
15. Sub-clauses (a), (b), (c) and (d) clearly indicate both from the express words used therein and also from the subject and context that the powers and functions enumerated therein relate to the S. T. A. and to none else. Therefore power or function under sub-clause (c-a) too in absence of express words, cannot be attributed to the powers and functions of the R. T. A. or of the State Government. In absence of a word in that sub-clause which may suggests something else the only possible conclusion which can fairly be drawn is that the S. T. A. has been conferred with the power to create routes for plying of stage carriages throughout the State on principles which may be laid down by the State Government.
16. However, if literal meaning of the words and the context in which they have been used in sub-clause (c-a) is taken then to my mind it empowers the State Government to lay down principles for the routes for plying of stage carriages.
17. Word ‘formulate’ has its origin from word ‘formulae’. Formulae means an exact method or form of words prescribed as a guide for thought, action, expression, or statement; fixed rule or set form. ” In legal terminology it has the sense of directions sent by the Magistrate to the Judge for the disposition of cases, with respect to which the legis actions (forms of actions) were inadequate.
18. Word ‘formulate’ thus is to be understood as to express in a formula, or as a formula, o; to put or state in exact, concise and systematic form.
19. Thus taking an over all view of Section 68 (3) and the practical aspect of the provisions (c-a) there should be no iota of doubt that the power of creation of route for plying of stage carriages now vests with the S. T. A. on the principles and formulae which the State Government may fix in that regard. This interpretation has to be giver to give purpose to the amendment which has been brought about by the Legislature in Section 68 (3) of the Act otherwise it carries no meaning and purpose of the amendment becomes itiose.
20. The interpretation which has been given to sub-clause (c-a) of Clause (3) further gets strength from the wording of clause (4) thereof which empowers the S. T. A. to issue directions and orders to any R. T. A. and such R. T. A, is under legal obligation to give effect to those orders or directions of the S. T. A. and shall be guided by the said directions provided the directions which have been issued by the S. T. A. are such which relate to discharge of its functions and powers under clause (3) of Sec. 68 and the directions so issued are within the conditions prescribed therein.
21. A joint reading of clauses (3) and (4) of Section 68 of 1988 Act would suggest that power to create route with effect from 14-11-1994 vests in the S. T. A. with the condition that it will be done on the principles laid down by the State Government. By no stretch of imagination the power in this respect can be assumed in favour of the R. T. A, in that case the placement of the provision in sub-clause (c-a) of clause (2; of Section 68 carries no sense. The Courts cannot give such interpreta tion to a provision which will distroy the purpose for which the Legislature made the provision.
22. In the present case the route, on which permit was granted and for which application for grant of permit was made by opposite-parties 4 to 21, is obviously a new route. The R. T. A. by passing the impugned resolution on 2-6-1995 created the new route and by the same resolution also granted stage carriage permits to the said respondents, though the part of the resolution in so far as it relates to the grant of permits is concerned has been set aside by the S. TA/s order dated 23-2-96 the remaining part of it in so far as it relates to creation of the new route is concerned has been upheld by that very order of the S. T. A.
23. In view of the interpretation given to the provisions in clauses (3) and (4) of Section 68 of the 1988 Act, in my opinion, both R. T. A. and S. TA erred respectively in creating the new route and upholding its creation by the R. TA.
24. So far plea of respondents about maintainability of the writ petition at the instance of petitioner is concerned that to has too no merit.
25. Petitioner is holder of stage carriage permit on the old route on part of which (for about 17 kms.) the new route overlaps for this reason the petitioner has right to challenge the illegal grant of permit by the Regional Transport Authority, on the new route. The petitioner accordingly filed revision before the S. T. A. challenging (a) creation of new route by the Regional Transport Authority and (b) grant of permit on that route to respondents 4 to 21.
26. Having failed to get the relief from S. T. A. in so far as creation of the new route was concerned petitioner exercised her right to invoke extraordinary writ juris diction of this Court to get rid of the illegal order of the Regional Transport Authority inasmuch as after dismissal of her revision by the S. T. A. in so far as it related to orders of the Regional Transport Authority creating the new route, she was left with the no other legal remedy. Therefore, in my opinion, the writ petition by petitioner is maintainable and the objection taken against its maintainability by respondents is wholly misconceived and lacks merit.
27. Writ petition is accordingly allowed and the orders passed by the Regional Transport Authority vide resolution dated 2-6-1995 and by the S. TA. dated 23-1-1996 (filed respectively in Annexures-2 and 9 to the writ petition), so far as it relates to creation of the new route is concerned, are quashed; costs on parties. Petition allowed.