Research › Browse › Judgment

Karnataka High Court · body

1982 DIGILAW 168 (KAR)

D. P. SHARMA v. K. S. T. A.

1982-08-06

CHANDRASHEKARAIAH, N.VENKATACHALA

body1982
VENKATACHALA, J. ( 1 ) THIS appeal is from the commo order of K. A. Swami, J. , dismissing wp No. 5850 of 1978 and connected writ petitions The petitioner in WP. No 5850 of 1978 has. p esented this appeal and for the sake of convenience he will hereinafter be referred to as the petitioner. ( 2 ) THE undisputed facts necessary for deciding this appeal, are briefly these: Under sub-sec. (7) of 63 of the motor Vehiches Act, 1939 (here inafter referred to as 'the Act'), the Central government issued the notification dt 19-12-1977 (produced as Ex-B in the writ petition) increasing the qwota of tourist vehicles in respect of which, the karnataka State Transport Authority (hereinafter referred to as 'the S. TA. ') could grant All India Permits for promoting tourism. Pursuant thereto, by its resolntion dated 4/5-4-1978 (produced as ex-C in the writ petition), the S. T. A resolved to invite applications under S. 57 (2) read with S. 63 (7) of the Act for grant of All India Permits in respect of the increased quo a of 16 tourist vehicles. Accordingly, by its notification published in the Karnataka gazette dt. 11-5-1978 (produced as Ex-D in the writ petition), the S. T. A. invited applications from the public for grant of such permits. In that notification, it was stated, inter alia, that the last date for receipt of such applications was 3-6-1978 and that those persons who had already made applications for grant of All India Permits for tourist vehicles, need not again apply. ( 3 ) THE petitioner was among those who had made applications to the s. T. A. for grant of All India Permits in respect of tourist vehicles, long beiore the aforesaid notification of the Central government inc. eas ng the number of All India Permits in respect cf tourist vehicles which the S. T. A. could issue. They presented writ petitions im pugning the aforesaid resolution and the notification of the S. T. A. inviting applications for grant of All India Permits for 16 tourist vehicles. eas ng the number of All India Permits in respect cf tourist vehicles which the S. T. A. could issue. They presented writ petitions im pugning the aforesaid resolution and the notification of the S. T. A. inviting applications for grant of All India Permits for 16 tourist vehicles. Their main grievance in the writ petitions was that for grant of All India Permits in respect of 16 tourist vehicles, only their applications should have been considered and that it was not open to the S. T. A. to invite applications for grant cf such permits and to consider applications received in response to such invitation. ( 4 ) THE learned single judge who heard the writ petitions, dismised them upholding the action of the s. T. A. in inviting applications for such All India Permits in respect of tourist vehicles. ( 5 ) IN this appeal, Shri A. V. Albal, learned Counsel for the appellant- petitioner, reiterated before us the contention which was urged unsuccessfully before the learned single judge, on behalf of the petitioner. He contested the correctness of the view of the learned single judge that sub-sec. (7) of s. 63 of the Act empowered the S. T. A. to invoke sub-sec (2) of 57 for inviting suo motu applications from public for grant of All India Permits in respect of tourist vehicles. According to him, sub-sec. (2) of S 57 could b-s invoked by the S. T. A. only for inviting applications from the public for grant of a stage carriage permit or public carrier's permit and not for grant of an all India Tourist Permit in respect of tourist vehicles, as i is a specie of contract carriage as defined under Sec 2 (29a) of the Act. He maintained that it was sub-sec (1) that was applicable for grant of an All India Tourist permit in respect of a tourist vehicle, because that sub-sec deals with the procedure for applying for and grant of a contract carriage permit. ( 6 ) WE shall proceed to examine the contention of Shri Albal with reference to the relevant provisions of the Act. ( 7 ) THE relevant part of sub-sec (7) of S. 63 of the Act, reads:" (7 ). . . . . . . . ( 6 ) WE shall proceed to examine the contention of Shri Albal with reference to the relevant provisions of the Act. ( 7 ) THE relevant part of sub-sec (7) of S. 63 of the Act, reads:" (7 ). . . . . . . . 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 tourist vehicles, as the Central government may, in respect of, that State, specify in this behalf and the provisions of Sections 49 50, 51, 57, 58, 59, 59-A, 60, 61 and 64 shall, as far as may be, apply in relation to such permits: provided that preference shall be given to applications for permits from:- (1) the India Tourism Development Corporation; (ii) a State Tourism Development corporation; (in) a State Tourist Department; (iv) such operators of tourist cars or such travel agents, as may be approved in this behalf by the ministry of the Central Government dealing in tourism. " ( 8 ) THE relevant pants of sub-sec (1) and (2) of S. 57 of the Act, read:" (1) An application for a contract carriage permit. . . . . . . . may be made at anv time (2) An application ior a stage carriage permit or a public carrier's permit shall be made. . . . . . . if the Regional Transport Authority appoints dates ior the receipts of such applications on such dates. " ( 9 ) IT is seen that sub-sec (7) of S. 63 incorporates therein, inter alia, S. 57 by reference, subject to the qualification that the application of tha section to sub-sec (7) of S. 63, should be as far as may be. ( 10 ) ELABORATING his contention Shri aibal said thus: Both sub-secs (1) and (2) of S. 57 provide for the procedure in applying for permits. While sub-sec (1) thereof prescribes the procedure in applying for a contract carriage permit, sub-sec (2) prescribes the procedure in applying lor a stage car riage permit or a public carrier's permit. Clause (29a) of S. 2 defines a 'tourist vehicle' as a contract carriage constructed or adapted or equipped in a particular manner. While sub-sec (1) thereof prescribes the procedure in applying for a contract carriage permit, sub-sec (2) prescribes the procedure in applying lor a stage car riage permit or a public carrier's permit. Clause (29a) of S. 2 defines a 'tourist vehicle' as a contract carriage constructed or adapted or equipped in a particular manner. Hence, sub-sec (1) of 57 which prescribes the procedure in applying for a contract carriage permit, should apply and not sub-sec (2) of S. 57 which prescribes the procedure in applying for a stage carriage permit or a public carrier's permit. ( 11 ) THE argument of Shri Albal, though may look attractive, is not sound for reasons which we shall presently state. ( 12 ) THE words 'as far as may be' in sub-sec (7) of S. 63 indicate' that the provisions of only sub-sec. (1) of to grant of permit under 63 (7) to the extent it is reasonably possible to do so. ( 13 ) IF the legislature intended that s. 57 should apply in relation the procedure in S. 57 should be adopted to All India Permits, a reference would have been made in S. 63 (7) only to sub-sec (1) and not the entire S. 57. Of the two different procedures set out in sub-sec (1) and sub-sec (2) of 57, the one appropriate to tne nature of me All India Permits should be adopted. As pointer out by the learned single judge, contract carriage permits and. private carrier's permits stand on a different footing from All India Permits. As regards contract carriage permits and private carrier permits, there are no quotas for such permits and such permits can be granted at any time as and when applications therefor are made. As regards All India Permits, the number of permits that can be granted is fixed. Further, a respons bility is cast upon the S. T. A. to select the best transport operators for granting such permits. But, no such responsibility is cast on Transport Authori. ies while granting contract carriage permits and publrc carrier permits. As regards All India Permits, the number of permits that can be granted is fixed. Further, a respons bility is cast upon the S. T. A. to select the best transport operators for granting such permits. But, no such responsibility is cast on Transport Authori. ies while granting contract carriage permits and publrc carrier permits. It is only when applications are invited by the S. T. A. lor grant of All India tourist Permits, that transport operators in the field will come ,to know of the availability of such permits' and will apply therefor and the S. T. A. will be in a position to select the best amongst them for giant of limited number of such permits, also taking into account the priorities under the proviso to sub-sec. (7) to S. 63. ( 14 ) THE object of granting All India tourist permits, is as staged in sub-sec (7) of S. 63, to promote tourism. Hence, prornouon of tourism by selecting the b st operator should be the paramount consideraton although private claims to operate tourist vehicles through All India Permits, have to be evaluated. When the number of All india Permits that can be granted is very small compared to the number of intending operators of tourist vehicles, it will be a healthy procedure to call for applications for grant of such permits, instead of granting permits in secrecy as and when applications are received, because the latter procedure opens a floodgate for manipulation favduritism and monopoly. ( 15 ) SHRI Albal nextly contended that the appellant - petitioner had, acquired a substantive right lor grant of a permit in respect of a tourist vehicle as he had made an application for grant of such permit and that hence such substantive right could not have been defeated by the S. T. A. by inviting applications from the publ c for grant of tourist vehicle permits which became available by reason of the npti- fication issued by the Central Government in that behalf. We find it difficult to comprehend as to how a person who makes an application for grant of a permit in respect of a tourist vehicle could get any substantive right in respect of such permit. His right is only to be considered along with other applicants for grant of a permit. We find it difficult to comprehend as to how a person who makes an application for grant of a permit in respect of a tourist vehicle could get any substantive right in respect of such permit. His right is only to be considered along with other applicants for grant of a permit. ( 16 ) SHRI Albal lastly sought to rely upon the decision of the Division bench of this Court in W. P. Nos. 7060 to 7062 of 1981 in support of his contention that sub-sec. (7) of Sec. 63 does not enable the S. T. A. to invite applications for grant of permits for tourist vehicle permits suo motu. ( 17 ) WE have carefully gone through that decision. Therein, it was specifically stated that it was not necessary to express any opinion on the question whether S. 63 (7) contemplates calling for applications for grant of tourist vehicle permits. That decision does not in any way support the contention of Shri Albal. ( 18 ) THUS, we do not see any good reason to dissent from the order of the leared single, judge. ( 19 ) IN the result, we dismiss this appeal. ( 20 ) HOWEVER, in the circumstances of this appeal, we direct the parties to bear their own costs. The learned Counsel for the appellant peitioner has now made an application for an interim order staying the operation of our above judgment, so that he may approach the Supreme court and obtain an order of stay of operation of our judgment. Pursuant to our judgment, the s. T. A. has to issue fresh notices to the applicants, who have sought for grant of All India Permits in respect of the tourist vehicles, and hear them before granting or refusing such applications. All this would necessarily occupy a consideiable time. Hence, we see no rea- on to grant the in erim order sought. Accordingly, we dismiss the application now made on behalf of the appellant-petitioner. If learned Counsel for parties make proper copy applications with requisite number of copying sheets, let copies of our judgment and orders on the oral application for grant of a certificate of fitness to appeal to the Supreme Court and the application for stay, be furnished to them forthwith. --- *** --- .