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1973 DIGILAW 32 (KAR)

N. BASAVAPPA v. MYSORE REVENUE APPELLATE TRIBUNAL

1973-02-19

K.J.SHETTY, SADANANDASWAMY

body1973
( 1 ) IN WP. No. 4448/70, the petitioner had applied to the RTA, Shimoga for grant of a stage carriage permit on the route from Kumsi to Shimoga and back. The RTA granted the permit on 10-5-1968. The route passes through a road section of 21 miles from Basavapatna cross to Honnali. Some of the objectors filed appeals against the grant in favour of the petitioner. By its judgment dt. 2nd December 1969 the MSTAT allowed all the appeals and set aside the grant made in favour of the petitioner. The petitioner preferred the appeal in No. 688/69 (MV) against the judgment of the MSTAT which was also dismissed. ( 2 ) IN WP. 107/ 1971, the petitioners applied to the RTA, Shimoga for the grant of a stage carriage permit from Nandigudi to Bhadravathi. The rta granted the permit on 12/12/1967. Some of the objectors filed appeals challenging the grant made to the petitioners, the MSTAT allowed the appeals and cancelled the permit on the ground that a portion of the route from. Honnali to Basavapatna cross, for a distance of about 2 miles overlaps the notified route under the Shimoga Scheme. The petitioners filed appeal No. 1252169 (MV) before the Mysore Revenue Appellate Tribunal which appeal was dismissed. ( 3 ) IN WP. 1349/1972, the petitioner was the holder of a stage carriage permit on the route from Shimasamudra to Srirampura and back. He filed an application for variation of the permit by way of an extension upto tiptur from Sriramapura. The RTA rejected the said application on 22-11-1968 for extension of the route from Sriramapura to Tiptur. Against that order, 'the petitioner preferred an appeal to the MSTAT. The MSTAT allowed the appeal and granted the variation sought for. Appeals were filed against the order of the MSTAT to the Mysore Revenue Appellate Tribunal which allowed the appeals and confirmed the order of the RTA on the ground that a portion of the proposed extension of the route overlaps the notified route of the Shimoga Packet Scheme viz. , Shattikere cross to tiptur. ( 4 ) THE decision in all these writ petitions depends upon the terms of the Shimoga scheme published in the Gazette on 20th March 1967. , Shattikere cross to tiptur. ( 4 ) THE decision in all these writ petitions depends upon the terms of the Shimoga scheme published in the Gazette on 20th March 1967. The relevant provision in the scheme is in the following terms : " The State Transport Undertaking will offer its services on all the routes to the complete exclusion of other persons. However operators operating on routes other than the ones notified and whose routes overlap the following road sections may continue to operate for the overlapping portions only; (a) Tumkur-Bellavi cross (2 miles) (b) Tarikere-Ajjampur cross (3 miles) (c) Tarikere-Lakkavalli cross (1-5/8 miles) (d) Honnali-Basavapatna cross (2 miles) (e) Paschimavahini-Kiranguur cross (2-1/ 8 miles) (f) Settikere cross to Tiptur (M. S. 88/3 to M. S. 99)". From the above terms of the scheme, it is clear that the scheme is intended to exclude all private operators subject to the condition mentioned therein. Hence, it is a scheme of complete exclusion of private operators but for the exception provided therein. The validity gf th Shimoga scheme has been upheld in WP. 2464/67 and connected cases decided on "15-3-1968. The petitioners in these writ 'petitions could be granted permits only if they came within the exception provided for in this scheme viz. , that they should have been operators operating on routes other than the notified routes and whose routes overlapped the road sections specified in the scheme. ( 5 ) IT is contended on behalf of the petitioners that all operators operating on routes other than the notified routes and whose routes overlap the specified road sections are exempted under the scheme, irrespective of the fact whether they were operating, on such routes or not on the date of the publication of the scheme. Under the scheme, it' is provided that such operators operating on routes not notified may continue to operate for the overlapping portions only. The words 'may continue to operate' definitely indicate that the exempted operators must be those who were operating on the date the scheme was published, The petitioners in WPs. 4448 of 1970, 107 / 1971 and 154911972 admittedly, were not operating on routes other than the notified routes which overlap the specified portions on the date the scheme was published. Hence, they do not come within the exception provided in the scheme. 4448 of 1970, 107 / 1971 and 154911972 admittedly, were not operating on routes other than the notified routes which overlap the specified portions on the date the scheme was published. Hence, they do not come within the exception provided in the scheme. The RTA, therefore, had no jurisdiction to grant permits in their favour. The fact that objection was not taken before the RTA on the ground that the Shimoga scheme preclude the grant of permits in favour of those petitioners is immaterial since the RTA itself had no jurisdiction to grant the permits applied for by these petitioners. The decision of the Mysore Revenue Appellate Tribunal in these writ petitions does not therefore call for interferenc. ( 6 ) IN WP. 1144/1971, the petitioner and another person hold jointly a stage carriage permit in BP. 188/58 to operate a service from Tumkur to mysore via Gubbi, Kadcha, Mayssandra, Nagamangala, Kirangur cross and Paschimavahini and back. That permit was curtailed with effect from 1-7-1968 from Kirangur cross to Tumkur, leaving a distance of only 12 miles from Kirangur cross to Mysore, due to the implementation of the shimoga Scheme. Subsequent to the publication of the Shimoga scheme, on 27-3-1968, the petitioners filed an application for the grant of a stage carriage permit from Madhugiri to Mysore, viz Tumkur, Kunigal, Maddur, Mandya, arkere, Kirangur crow and Paschimavahini. The RTA, Tumkur, granted the permit on 23124-8-1968. The appeals filed against the grant of the permit were allowed by the Mysore State Transport Appellate Tribunal. The grant of permit was set aside on the ground that the provisions of S. 47 (3) of the Indian Motor Vehicles Act had not been followed. Against that order, a writ petition was filed in this Court, in WP. 7551 of 1969. The writ petition was allowed and the order of the MSTAT set aside and the appeals were remanded to the MSTAT holding that S. 47 (3) of the Motor Vehicles act is not applicable to inter-regional permits. After remand, the MSTAT heard the parties and set aside the grant of the permit , mainly on the ground that the petitioner was not an exempted operator under the Shimoga scheme. Against the order of the MSTAT, the petitioner filed an appeal before the Mysore Revenue Appellate Tribunal, in appeal No. 97 of 1971 (MV.) and that appeal was dismissed. Against the order of the MSTAT, the petitioner filed an appeal before the Mysore Revenue Appellate Tribunal, in appeal No. 97 of 1971 (MV.) and that appeal was dismissed. ( 7 ) THE RTA by its order 23/ 24-8-1968 granted the permit in favour of the petitioner from Madhugri to Mysore-Tumkur, Kunigal-Maddur, mandya-Arkere Kirangur cross and Paschimavahini, subject to the conailion that he shall not pick up or set down passengers between Kirangur cross and Paschimavahini, thereby rendering the permit ineffective for a portion of the route which overlaps the notified route under the Shimoga schema. ( 8 ) THE first contention urged by Mr. Narayana Rao, on behalf of the petitioner is that, on the date of the publication of the Scheme tht petitioner was operating the service between Paschimavahini and Mysore, that the route between Paschimavahini and Mysore is a route which is not a notified route under the Shimoga Scheme and that, therefore, h is an operator who is exempted under the terms of the Shimoga scheme. His contention is that though the portion of the route he was then operating viz. , from Tumkur to Paschimavahini via Gubbi, Kadaba, Mayasandra and Nagamangala was notified under the Shimoga Scheme, the other portion of his route between Mysore and Paschimavahini was not a notified route under the scheme; therefore on the route between Mysore and paschimavahini which is not notified in the route on which he was operating on the date of the publication of the scheme, he is entitled to be treated as an operator exempted under the terms of the scheme. ( 9 ) IN Nilkanth Prasad v. State of Bihar, AIR. 1962 SC. 1136. it was contended on behalf of the appellants in that case, that where the scheme notifies a part of a larger route operated by a private operator, the two routes must be regarded as different and that the private operator cannot be prevented from running his omnibus on that portion of the route which is and different route, although notified. That contention was negatived by the Supreme court. Hence, in the present case, the petitioner cannot be said to be an operator who is operating on a route other than the notified route under the Scheme, sinece he was operating on the date of the publication on the notified route viz. That contention was negatived by the Supreme court. Hence, in the present case, the petitioner cannot be said to be an operator who is operating on a route other than the notified route under the Scheme, sinece he was operating on the date of the publication on the notified route viz. , Tumkur, Gubbi, Kodaba, Mayasandra, Nagamangala, kirangur cross and Paschimavahini, though it was a portion of the petitioner's route Tumkur to Mysore. Even otherwise, the Scheme does not make any exception in the case of operators who were operating on routes any portion of which only were other than the notified routes. The scheme refers only to operators who were operating on routes other than the notified routes. The scheme has to be construed strictly as it is one of complete exclusion of private operators. For this reason also the petitioner cannot be said to be an operator who was operating on a route other than the notified routes. ( 10 ) THE second contention urged on behalf of the petitioner by Mr. Narayana Rao is that the RTA granted the permit in favour of the petitioner by imposing a condition that the petitioner should not pick up or set down passengers between Kirangtur cross and Paschimavahini, and that therefore, such a permit does not violate the terms of the Shimoga scheme. ( 11 ) IT has ben held in the Mysore State Road Transport Corporation v. The Mysore Revenue Appellate Tribunal, (1967) 1 Mys. L. J. 148, FB. by the Full Bench, that the rights o'f the private operators are co-related to the extent of the exclusion provided for under the particular scheme. The jurisdiction of the rta under S. 68f (2) of the Motor Vehicles Act was discussed and it was observed as follows : " If the Authority is of the opinion that the Scheme provides for complete exclusion of private operators from a notified route, then, the authority has no further jurisdiction to grant or renew a permit to ply on that route; a permit with a condition rendering it ineffective also cannot be granted since that may in effect amount to modifying the scheme. But, if on a construction of the scheme as a whole it is reasonable for the Authority to infer that the intention of the scheme is only to exclude private operators partially from overlapping portions of notified routes, then the Authority has jurisdiction u/s. 48 to grant or renew a permit with any restriction consistent with the provisions of the scheme including that of rendering the permit ineffective by forbidding a private operator from picking up or setting down passengers over the notified part of the route. " the Shimoga scheme is one which provides for complete or total exclusion of private operators from the notified routes. The only exception under the scheme is that the operators specified therein are allowed to continue to passengers over the notified part of the route. " (a) Tumkur-Bellavi cross (2 miles) (b) Tarikere-Ajjampur cross (3 miles) (c) Tarikere-Lakkavalli cross (1-5/8 miles) (d) Honnali-Basavapatna cross (20 miles) (e) Paschimavahini-Kirangur cross (2-1/8 miles) (f) Sattikere cross to Tiptur (MS. 88/3 to MS. 89 ). Since the petitioner, as observed above, was not an operator who was operating on a route other than the notified routes on the date of the coming into force of the Shimoga scheme, the petitioher is not one of the operators who can continue to operate on any of the specified overlapping portions; but for the specified operators in respect of the specified portions the scheme is one of total exclusion of private operators from the notified routes. Hence, the RTA was not competent to grant the permit rendering it ineffective by forbidding the petitioner from picking up or setting down passengers between Kirangur cross and Paschimavahini. ( 12 ) MR. Narayana Rao, releid on the decision of the Supreme Court in Rom Sanchi Singh v. Bihar State Road Transport Corpn. ,. CA. 2426/68. (1970) 2 Un. Rep. Jugmts. 814. reported in 1970 Vol. II. Unreported judgments (Supreme Court at page 814.) In that case, the contention of the State Road Transport Corporation that there should be complete exclusion of other persons from plying buses over the notified routes was negatived by the Supreme Court. ,. CA. 2426/68. (1970) 2 Un. Rep. Jugmts. 814. reported in 1970 Vol. II. Unreported judgments (Supreme Court at page 814.) In that case, the contention of the State Road Transport Corporation that there should be complete exclusion of other persons from plying buses over the notified routes was negatived by the Supreme Court. It was held that the scheme in that case merely granted to the State Road Transport corporation, a right to ply their stage carriages from Patna to Neuadah and all services including the service on portion enroute were to be run by it and that there was no complete exclusion of other operators under the schema. It was therefor held that private operators could be granted permit on routes overlapping the notified route provided they did not pick up or set down passengers on the overlapping portion of the notified route. But, in the present case, the Shimoga scheme provides for complete exclusion of other operators except those operators specified and subject to the condition mentioned therein as explained above. Since the petitioner did not come with the exception provided under the schema the rta had no jurisdiction to grant the permit in favour of the petitioner making it ineffective over the overlapping portion of the notified route. Hence, the decision of the Mysore Revenue Appellate Tribunal calls for no interference in this case also. ( 13 ) THE writ petitions are, therefore dismissed but in the circumstances of the case there will be no order as to costs. --- *** --- .