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1981 DIGILAW 231 (KAR)

K. S. R. T. C. v. STATE OF KARNATAKA

1981-08-03

D.M.CHANDRASHEKHAR, N.VENKATACHALA

body1981
CHANDRASHEKHAR, C. J. ( 1 ) BY consent of learned Counsel, this appeal is treated as having been posted for hearing and we have heard them. ( 2 ) THIS is an appeal from the order of puttaswamy, J. , dismissing Writ petition No. 12191 of 1981. The petitioner therein, the Karnataka Slate road Transport Corporation (hereinafter referred to as the Corporation) has presented the appeal. ( 3 ) IN the writ petition, the Corpora tion had prayed for declaring Rule 123a of the Karnataka Motor Vehicles rules, 1963 (hereinafter referred to as the Rules) as being ultra vires of the motor Vehicles Act, 1939 (hereinafter referred to as 'the Act) and to grant consequential reliefs. The Corporation had also prayed for an interim order staying further proceedings before the karnataka State Transport Authority (hereinafter referred to as the S. T. A.) on an application by respondent-3 for renewal of the All India Tourist permit which had been granted to him under sub-section (7) of Section 63 of the Act. ( 4 ) THE All India tourist permit issued under sub-section (7) of Section 63 of the Act to respondent-3, wa,s due to expire on 30. 8. 81. He had applied in time for its renewal. The substance of his application had been notified in the Gazette and objections thereto and representations in respect thereof, were called for. The Corporation which held stage carriage and contract carriage permits, but not any All India tourist permit, had filed objections opposing such renewal application, and wanted to be heard. But, the S. T. A. refused to hear the Corporation on the ground that it (the Corporation) had no locus stanai under Rule 123-A of the Rules to make any representation in regard to such application or to be heard by the S. T. A. ( 5 ) AS Rule 123a does not provide for any operator other than the holder of an All India tourist permit to file objections to, or representation in connection with, an application for grant of such permit, or being heard, the Corporation impugned the vires of that Rule. The learned single Judge upheld the vires of that Rule. ( 6 ) IN this appeal, Shri B. Thilaka hegde, learned Counsel for the Corporation, reiterated his contention that Rule 123a is ultra, vires of the act. The learned single Judge upheld the vires of that Rule. ( 6 ) IN this appeal, Shri B. Thilaka hegde, learned Counsel for the Corporation, reiterated his contention that Rule 123a is ultra, vires of the act. On the other hand, Shri M. Rangaswamy, learned Counsel for respondent-3 herein, argued in support of the order of the learned single Judge. ( 7 ) IN order to appreciate the rival contentions of learned Counsel, it is necessary to set out the relevant provisions of the Act and the Rules. ( 8 ) THE relevant portion of sub-sec. (7) of S. 63 of the Act, reads: (7) Notwithstanding anything contained in sub-section (1) but subject to any rules that may be made under this Act, any state Transport Authority may, for the purpose of promoting tourism, grant permits valid for the whole or any part of India, in respect of such number of motor vehicles as the Central Government may, in respect of that State, specify in this behalf, and the provisions of sections 49, 50, 57, 58, 59, 59a, 60, 61 and 64 shall, as far as may be, apply in relation to such permits. (Underlining is ours) ( 9 ) SECTION 50 of the Act reads: 50. 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 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 authority in the region to the effect that the number of contract carriages for which permits have already been granted is sufficient for or in excess of the needs of the region or any area within the region. (Underlining is ours) ( 10 ) THE relevant portion of sub-sec. (Underlining is ours) ( 10 ) THE relevant portion of sub-sec. (2) of S. 58, reads: (2) A permit may be renewed on an application made and disposed of as if it were an application for a permit: ( 11 ) SUB-RULE of Rule 123a of the Rules, reads:"on receipt of an application under sub-rule (1), the State transport Authority shall make such application available for inspection at the office of that authority and shall publish such application or substance thereof in the Official gazette together with a notice of the date before which any representation in connection therewith may be submitted within 30 days from the date of such publication by: (a) any person who holds a permit issued under sub-section (7) of S. 63: (b) any local authority or police authority in the region. " ( 12 ) IT is seen that under the above sub rule only holders of All India tourist permits can make representations in regard to an application for grant of all India tourist permit and other categories of permit holders have no locus standi to make such representations , ( 13 ) SHRI Thilaka Hegde argued thus: sub-section (7) of Sec. 63 makes the provisions of S. 50 applicable to grant of All India tourist permits. The latter section provides for making repesentations by persons already holding contract carriage permits in the region and such representations being considered while dealing with an application for a contract carriage permit. All India tourist permit, is only a species of contract carriage permit. Since S. 50 provides that in respect of an application for a contract carriage permit all holders of contract carriage permits can make representations and the representations so made should be considered by the Transport authority, it follows that in respect of an application for an All India tourist Permit (a species of contract carriage permit) also, all holders of contract carriage permits arid not merely the holders of All India Tourist permits, can make representations and that the representations so made should be considered by the Transport authority. But, Rule 123-A provides that only holders of All India permits can make representations in regard to an application for grant of an All india tourist permit. It is not permissible for a rule to narrow down the scope of a Section. But, Rule 123-A provides that only holders of All India permits can make representations in regard to an application for grant of an All india tourist permit. It is not permissible for a rule to narrow down the scope of a Section. Hence, Rule 123-A is inconsistent with Section 50 and is ultra vires of the Act. So runs the argument. ( 14 ) THE above argument of Shri thilaka Hegde overlooks the effect of the words "as far as may be" occurring towards the end of sub-section (7) of s. 63. Those words make it clear that the provisions of any of the sections mentioned in that subsection should be appropriately modified to suit the special character of All India tourist permits. When an application for grant of a contract carriage permit is to be considered, it is only appropriate that existing contract carriage permit holders in that region should have the right to make representation so that they may urge that the number of contract carriage permits which have already been granted, are sufficient or in excess of the need of that region. But, when an application for grant of an All India tourist permit comes up for consideration, holders of contract carriage permits except holders of All India tourist permits, cannot reasonably have anything to say either by way of objections or otherwise, because the purpose of the operation of an All india tourist vehicle is different from that of the operation of a contract carriage in a region. It follows that while considering an application for grant of an All India tourist permit, it is sufficient to consider the representations of persons already holding all India tourist permits and it is not necessary to consider the representations of holders of other- categories of contract carriage permits. The modification of the provisions of S. 50, effected by Rule 123-A, is appropriate to the character and purpose of All india tourist permits and such modification is permitted by the expression "as far as may be" occurring in subsection (7) of S. 63. Hence, we are unable to accept the contention of shri Thilak Hedge that Rule 123a is ultra vires of S. 50 or any other Section of the Act. Hence, we are unable to accept the contention of shri Thilak Hedge that Rule 123a is ultra vires of S. 50 or any other Section of the Act. ( 15 ) HOWEVER Shri Thilaka Hegde submitted that many holders of All india tourist permits operate their vehicles covered by such permits, mostly within the State of Karnataka only and not throughout India and that consequently, holders of contract carriage permits who operate within this State, have to face unhealthy competition from holders of All India tourist permits. It was also submitted bv Shri Thilaka Hegde that many holders of All India tourist permits, operate their vehicles clandestinely as stage carriages and thereby create unhealthy competition with the corporation which operates a very large number of stage carriage in the state. ( 16 ) WHAT Shri Thilaka Hegde complains of, is, in substance, abuse of All india tourist permits. In regard to such abuse, the Corporation has to complain to Police and the Transport authorities and co urge them to check such abuse of All India tourist permits. But, the possibility of such abuse, cannot be a ground for opposing the grant of such permits or for holding that the Corporation or holders of contract carriage permits other than all India tourist permits, should also have a right of making representation in regard to an application for grant of an all India tourist permit and that Rule 123a which does not provide for such representation, is ultra vires of the act. Possibility of such abuse cannot also be a ground of objection which could be raised in a representation permissible under S. 50 of the Act, in that, such representation should be confined to the adequacy or otherwise of the number of contract carriages in the region. Hence, it is difficult to see how Rule 123a has deprived the right of representation, which was available to the Corporation under Sec. 50 of the Act. ( 17 ) THUS, there is no good ground to dissent from the view taken by the learned single Judge and accordingly, we dismiss this appeal. ( 18 ) IN this appeal, parties will bear their own costs. Order on oral Application for grant of a Certificate of Fitness to Appeal to the Supreme Court. ( 17 ) THUS, there is no good ground to dissent from the view taken by the learned single Judge and accordingly, we dismiss this appeal. ( 18 ) IN this appeal, parties will bear their own costs. Order on oral Application for grant of a Certificate of Fitness to Appeal to the Supreme Court. After we pronounced the above judgment in Court, the learned Counsel for the Corporation made an oral application for grant of a certificate of fitness to appeal to the Supreme Court from our judgment. In our opinion, no substantial question of law of general importance, which needs to be decided by the supreme Court, can be said to arise from our judgment. Hence, we decline to grant the certificate prayed for and dismiss the oral application. However, we continue the interim order made by us on 22. 7. 81 for a period of 3 weeks from to-day as the learned Counsel for the Corporation stated that the Corporation intends to approach the Supreme Court for grant of special leave to appeal from our judgment and to move the Supreme court for an appropriate interim order. --- *** --- .