Bombay High Court
Corporation vs State Of Maharashtra & Ors on 20 November, 2012
Bench: B. P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
W.P. NO.2723 OF 1991 AND W.P.NO.2724 of 1991
Maharashtra State Road Transport
Corporation ... Petitioner
V/s.
State of Maharashtra & ors ... Respondents
Mr.G.S.Hegde for Petitioner
Mr.R.M.Patne for Respt nos. 1 and 2
CORAM : B.P.DHARMADHIKARI, J
DATE: 20th November, 2012.
ORAL JUDGMENT.
1. Both these Petitions are part heard. Mr.Hegde learned Counsel for
the Petitioner and Learned AGP for Respondent nos. 1 and 2 have
completed their arguments in the first half of 19.11.2012. As nobody
appeared for contesting Respondents, matter was adjourned to second half.
Nobody appeared in the second half on 19.11.2012. Today again, there is
no appearance for the contesting Respondents.
2. Learned AGP who has supported the case and cause of the Petitioners
has pointed out that the impugned order passed in favour of the contesting
Respondents has been stayed by this Court on 19.8.1991 and that interim
order holds the field even today. According to learned counsel for the
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Petitioner and the learned AGP the Respondent no.3 has therefore lost
interest in the matter.
3. Challenge in both these Petitions is to the order passed by the State
Transport Appellate Tribunal on 3.5.1991 whereby it has allowed the
Appeals filed by respective Respondent no.3 and held that their
Applications for grant of permit to Maxi-cab is maintainable and
Application is held not barred in view of 1973 Scheme framed in favour of
the Petitioner-MSRTC.
4. Petitioners before this Court is a statutory Corporation constituted
under the Road Transport Corporation Act and Respondent no.2-State
Transport Authority is the permit issuing Authority under the provisions of
Motor Vehicles Act,1988. Respondent no.3 is a Operator who had applied
for permit to ply Maxi-cab and that Application was rejected by the
Respondent no.2 because of the 1973 scheme framed under Chapter VI of
the M.V.Act, 1988. Said order of the Respondent no.2 was then questioned
by the Respondent no.3 in an Appeal before the Appellate Authortiy
functioning under the Respondent no.1 and that Appeal has been allowed
by the impugned Order on 3.5.1991.
5 Mr.Hegde in this background has invited attention to the relevant
provisions of the Scheme under which the Petitioner is operating stage
carriage and contract carriage services in the entire State of Maharashtra.
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He submits that in the light of the provisions contained in the said scheme
framed under chapter IV of 1939, of the M.V.Act, 1988 the Petitioners are
entitled to operate to the exclusion of all other private Operators including
Respondent no.3. He submits that Private operators like the Respondent
no.3 can operate only on routes and only in the area/fields not expressedly
prohibited in such a Scheme. He has invited attention to the provisions of
section 103 and 104 of M.V. Act, 1988 read with section 98 to substantiate
his contentions. Support is also taken from the Judgment of the Hon'ble
Apex Court in AIR 1986 SUPREME COURT 319
ig (M/s Adarsh
Travels Bus Service vs. State of U.P.) Learned counsel submits that the
Appellate Authority has erroneously construed the law as explained by the
Apex Court in the said Judgment. His other contention is that the alleged
introduction of a new concept by using the words "Maxi-cab" cannot have
the effect of diluting the scheme which has been looked into by the
Respondent no.2. For the said purpose he has invited attention to the
provisions of section 2 (29) which defines Omni-bus to urge that "Maxi-
cab" is the only vehicle taken out from the said definition. This exercise
cannot be construed as amending or modifying 1973 scheme under which
the Petitioner has been operating. He has further contended that after this
Court granted interim reliefs in the present matters the issue whether
"Maxi-cab" can be permitted in the light of 1973 scheme has been
engaging the attention of the Respondent no.1-State Government but the
Respondent no.1 has not implemented any decision in this respect even if it
may have been taken and therefore prays for quashing and setting aside of
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the impugned order dated 3.5.1991 and for allowing the Petitions.
6. Learned AGP appearing for the Respondent no.1-State Government is
seeking time to make a definite statement about Policy decision if any
taken by the State Government in this respect. The Petition is pending
before this Court since 1991 and subsequent Policy decision is therefore
not very relevant for deciding the controversy at this stage. Even if any
such policy decision has been taken, the same has not been brought before
this Court either by the Respondent no.3 or by the Petitioner.
7. A perusal of Chapter VI of the M.V.Act 1988 shows that in the said
Chapter words "road transport service" means service of motor vehicles
carrying passengers or goods or both by road for hire or reward. Section 98
gives Chapter VI over riding effect over Chapter V and other laws. Section
99 deals with preparation and publication of proposal regarding road
transport service of a State Transport undertaking. Section 103 obliges the
State Government to issue permits to the State Transport Undertakings if it
applies for the same in the pursuance of the approved scheme. This
obligation is notwithstanding anything to the contrary in Chapter V of the
1988 Act. Section 104 is restriction on grant of permits in respect of a
notified area or notified route. It provides that after publication of the
scheme under sub section (3) of section 100 the State Transport Authority
or the Regional Transport Authority cannot grant any permit except in
accordance with provisions of the scheme. The proviso enables grant of
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such permit 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 a permit shall cease to be effective on the
issue of a permit to the State transport undertaking in respect of that area or
route.
8.
The judgment of the apex Court in AIR 1986 SUPREME COURT
319 SUPRA reveals that a Private operator cannot operate his vehicle on
any part on a portion of a notified area or a notified route unless he is
authorised so to do by terms of the Scheme itself. The Apex Court has
observed that the argument of greater inconvenience to be caused to the
travelling public advanced by the private Operator is to be looked into by
the State Transport Authority before publishing the Scheme and if any such
protection as is required, the State Transport Undertaking and the
Government have to make sufficient provisions in the Scheme itself. The
Judgment particularly para 6 shows a primary case given to the Scheme
and to permit and operations carried out accordingly by the Petitioners.
9. A perusal of the impugned order passed by the State Appellate
Tribunal shows that after considering the various legal provisions and the
Scheme, the said Authority has given undue importance to the fact that a
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new concept like a "Maxi-cab"has been introduced in 1988 Act by adding
the definition under section 2 (22). It found that the " Maxi- cab" is not
prohibited in the 1973 Scheme from operating on routes on which the
Petitioner is authorised. It held that the legislative intent behind
introducing the said Concept in the 1988 Act was to enable the "Maxi-cab"
to ply on the very same route or in the very same area. Thus, because of
introduction of this concept of "Maxi-cab", it is found that the Respondent
no. 3 was/is eligible to grant of permit.
10.
This consideration therefore shows that in the absence of
introduction of such a concept of "Maxi-cab" vide section 2 (22) in 1988
Act, the Respondent no.2 Appellate Tribunal also could not have and would
not have allowed the Appeal preferred by the Respondent no.3. Hence, the
only question is whether the addition of a new definition and the phrase
"Maxi-cab in the 1988 Act is sufficient to derogate from the monopoly
given to the Petitioner in 1973 scheme. A perusal of the impugned order
particularly para 8 reveals that the tribunal has found that the Scheme did
not prohibit plying of "Maxi-cab.: It has further found that the Petitioner-
MSRTC is not plying any public service vehicles having capacity between
4 to 12 and hence the Scheme did not prohibit use of vehicles with that
capacity. As pointed out by the learned counsel for the Petitioner and the
learned AGP, the 1988 Act defined omnibus in section 2 (29) to mean any
motor vehicle adopted to carry more than six persons excluding the driver,
section 2 (18) (A) of M.V.Act 1939 also carried the same definition. Thus,
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when the scheme was framed in 1973, the concept of Omnibus was very
much in existence and any vehicle which carried 6 or more persons to
excluding the driver stood covered thereunder. When the 1973 scheme is
viewed in this background, it is apparent that the said scheme excluded the
vehicles which satisfied the requirement as 'Omnibus' and did not permit
them to compete with the vehicles of the Petitioner association.
11. "Maxi cab" has been defined in section 2 (22) of the M.V.Act 1988
to mean any motor vehicle constructed or adapted to carry more than six
passengers but not more than twelve passengers excluding the driver for
hire or reward.
12. Logic in impugned order shows that 'Omnibus' cannot be issued such
permit as per 1939 Act in view of 1973 scheme. Addition of a new
definition and employing the words "Maxicab" does not carve out a new
class but it is sub class of Omni-bus as defined in section 2 (29) and cannot
over ride the provisions of the scheme of 1973. Technically, "Maxicab" is
only a sub class and it is included in 1973 scheme under 1939 Act as Omni-
bus Section 2 (22) defining "Maxi cab" to mean that any vehicle
constructed or adapted to carry more than six passengers but not more than
twelve passengers excluding the driver for hire or reward does not modify
the definition of 'Omnibus' in any manner. The order of the Tribunal shows
that the said tribunal could not have permitted Omnibus and to compete
with the Petitioner. The said logic also holds good the field for not
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permitting maxi-cab to operate in the area/route of the Petitioners. Merely
because of new definition in section 2 (22) in 1988 Act, the provisions of
Chapter VI of the said Act or then provisions in section 98 or 103 are not
rendered nugatory. The bar on private operators or restrictions imposed
under section 104 are not diluted by the said amendment. The use of such
an amendment and legislative intent behind it as gathered by the Appellate
Tribunal therefore cannot be accepted as valid. The said amendment does
not derogate from the law on the subject of the "scheme" and position is
not changed so as to advance cause or case of the Respondent no.3. The
impugned order totally overlooks the basic fact that maxi cab continues to
be an 'Omnibus' and therefore was and is prohibited from competing with
the Petitioner. The impugned order dated 3.5.1991 passed by the Appellate
Tribunal is therefore unsustainable and the same is accordingly quashed.
13. Both the Petitions are allowed. Rule is made absolute accordingly.
However in the interest of justice, there shall be no order as to costs.
(B.P.Dharmadhikari, J)
