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1991 DIGILAW 251 (KER)

Krishna Das v. S. T. A. T. , Ernakulam

1991-07-01

KRISHNAMOORTHY

body1991
Judgment :- Krishnamoorthy, J. These Writ Appeals are against the common judgment of a learned Single Judge, reported in Rajendran v. S. T.A. T. (1991 (1) KLT 255). Two questions arise for consideration in these appeals, namely (1) whether a stage carriage permit issued under the Motor Vehicles Act, 1939 can be renewed under S.81 of the Motor Vehicles Act, 1988 and (2) whether the grounds given for rejecting an application for renewal of a permit under S.81(4) are exhaustive or only illustrative. The learned judge answered the first question in the negative and held on the second question that the grounds given in S.81(4) for rejection of an application for renewal are exhaustive and not illustrative. 2. The appellant in W.A. No. 34 of 1991 was the petitioner in O.P. No. 10080 of 1990 and he was operating 9 stage carriage services on different routes. When the period of the permits of 4 stage carriages was nearing expiry, he applied for renewal of those permits before the Regional Transport Authority, under the provisions of the Motor Vehicles Act, 1988. The Regional Transport Authority held that in view of S.71(4) of the 1988 Act, he is not entitled to get renewal of the permits. That Authority also declined renewal in view of S.81(4) of the 1988 Act, as the Tahsildar of the place had issued prohibitory orders against transfer of four vehicles of the appellant-petitioner and revenue recovery proceedings had been initiated for arrears of tax in respect of some of his vehicles. Accordingly the R.T.A. rejected the applications for renewal. He filed an appeal before the State Transport appellate Tribunal (S.T.A.T.) challenging the order of the Regional Transport Authority. The Tribunal held that S.71(4) of the 1988 Act is not a bar since the original permits were granted under the Motor Vehicles Act, 1939. The Tribunal further held that the matter is entirely governed by S.81 of the new Act and as there is no prohibition therein as is contained in S.71(4), there cannot be a bar for renewing the permits. But the Tribunal found that the grounds enumerated in S.81(4)(b) are not exhaustive but only illustrative and accordingly set aside the order of the R.T.A on that question and directed that Authority to dispose of the applications afresh, in the light of the observations contained in its order. But the Tribunal found that the grounds enumerated in S.81(4)(b) are not exhaustive but only illustrative and accordingly set aside the order of the R.T.A on that question and directed that Authority to dispose of the applications afresh, in the light of the observations contained in its order. The petitioner (in O.P. 10080 of 1990) challenged the order (Ext. P5) of the Tribunal holding that the grounds enumerated in S.81(4) of the new Act are only illustrative. The 3rd respondent in that original petition, one Rajendran, was hoping to get a regular stage carriage permit on one of the routes in question in the vacancy that may arise if the permit in favour of the appellant-petitioner is not renewed. He filed O.P. No. 10206 of 1990 challenging the finding of the Tribunal that the disability envisaged in S.71(4) of the new Act cannot have any application in regard to an application for renewal under S.81(4). Under the impugned judgment the learned Single Judge disposed of the two Original Petitions as mentioned above. 3. Coming to the first question, the permits in question were granted to the appellant in W.A No. 34 of 1991 under the provisions of the Motor Vehicles Act, 1939 (hereinafter referred to as the 1939 act). The 1939 Act was repealed by the Motor Vehicles Act, 1988 (hereinafter referred to as the 1988 act) which came into force on 1-7-89. It is an admitted fact that the appellant was having more than 5 permits on the date of application for renewal of the permits which contravenes the provisions contained in S.71(4) of the 1988 Act. The argument raised by counsel for the appellant in W.A. No. 34 of 1991 is that the bar contained in S.71(4) cannot apply to the case of renewal of a permit granted under the 1939 Act, if the other conditions mentioned in S.81 are satisfied. He also relied on the decision of the Supreme Court reported in V. O.K. Bus Service v. R.T. Authority (AIR 1957 SC 489) wherein the nature of renewal of a permit under the 1939 Act was considered. It was observed: "A reading of the relevant provisions of the Motor Vehicles Act and of the rules thereunder, leads indubitably to the conclusion that a renewal is a continuation of the permit previously granted. It was observed: "A reading of the relevant provisions of the Motor Vehicles Act and of the rules thereunder, leads indubitably to the conclusion that a renewal is a continuation of the permit previously granted. The fact that the grant of renewal is not a matter of course, or that it is open to the authorities to impose fresh conditions at the time of renewal does not, when the permit is in fact renewed, alter its character as a renewal". 4. From the aforesaid decision it is to be taken that renewal of a permit is in effect a continuation of the old permit. Thus the answer to the first question will depend upon the question as to whether the permits granted under the 1939 Act can be continued under the 1988 Act on the facts of this case. 5. The 1939 Act was repealed by the 1988 Act. The effect of the repeal of the 1939 Act, on the rights and obligations accrued or incurred under the repealed enactment, is governed by S.6 of the General Clauses Act and the repealing provision contained in the 1988 Act. S.6 of the General Clauses Act, so far as it is relevant in this case, is as follows: "6. Effect of repeal-where this Act, or any Central Act or Regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not XX XX XX XX (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". (emphasis supplied) 6. The effect of S.6 of the General Clauses Act is that any right or privilege conferred under the repealed Act will not be affected only if there is no contrary intention in the repealing Act. For ascertaining whether there is any contrary intention, one has to look into the provisions of the 1988 Act. S.217 of the 1988 Act is the repealing provision, and on reading that Section we have no doubt that it does not save all the rights and privileges acquired under the 1939 Act, but saves only those rights and privileges which are not inconsistent with the provisions of the 1988 Act. S.217, so far as it is relevant for the purpose of this case, is extracted below: "217. S.217, so far as it is relevant for the purpose of this case, is extracted below: "217. Repeal and saving.- (1) The Motor Vehicles Act, 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this section referred to as the repealed enactments) are hereby repealed. (2) Notwithstanding the repeal by sub-section (1) of the repealed enactments, (a) any notification, rule, regulation, order or notice issued, or any appointment or declaration made or exemption granted, or any confiscation made, or any penalty or fine imposed, any forfeiture cancellation or any other thing done, or any other action taken under the repealed enactments, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been issued, made, granted, done or taken under the corresponding provision of this Act; (b) any certificate of fitness or registration or licence or permit issued or granted under the repealed enactments shall continue to have effect after such commencement under the same conditions and for the same period as if this Act had not been passed; XX XX XX XX XX (4) The mention of particular matters in this section shall not be held to prejudice or affect the general application of S.6 of the General Clauses Act, 1897(10 of 1897), with regard to the effect of repeals". (emphasis supplied) 7. A reading of clause (a) of sub-section (2) of S.217 of the 1988 Act makes it clear that among other matters, an order issued or any other thing done, or any other action taken under the repealed enactment, namely the 1939 Act, shall be deemed to have been issued, done or taken under the 1988 Act only if, it is not inconsistent with the provision of the latter Act. A permit is preceded by an order by the concerned authority granting the permit. The order in favour of the appellant granting the permits in question will continue to have force after 1-7-1989 if only it is consistent with the provisions of the 1988 Act. 8. At this stage, it is relevant to note the provisions of S.-71 of the 1988 Act. S.71 deals with the procedure of the Regional Transport Authority in considering applications for stage carriage permit. 8. At this stage, it is relevant to note the provisions of S.-71 of the 1988 Act. S.71 deals with the procedure of the Regional Transport Authority in considering applications for stage carriage permit. S.71(4) which is relevant for this case reads as follows:- "(4) A Regional Transport Authority shall not grant more than five stage carriage permits to any individual or more than ten stage carriage permits to any company (not being a State transport undertaking)". The appellant in W.A. 34 of 1991 is admittedly having more than 5 permits on the date of his application for renewal and on the date of coming into force of the 1988 Act. If that be so, all orders passed granting permits to him beyond 5 permits shall cease to be operative on the coming into force of the new Act, as such orders are clearly inconsistent with the provisions of the 1988 Act. This will be the position under sub-section 2(a) of S.217 of the 1988 Act. 9. But by the provision in S.217(2)(b), the legislature has saved any certificate of fitness or registration or licence or permit issued or granted under the 1939 Act. The sub-clause further provides that the permit shall continue to have effect under the same conditions and for the same period. The language of S.217(2)(b) is different from that of S.217(2)(a) in as much as permits are given continued life as if the 1988 Act is not passed. They are not to be deemed as permits under the 1988 Act as we see in clause (a) in respect of the matters mentioned therein. Thus on a combined reading of S.217(2)(a) and (b) it is clear that any permit granted under the 1939 Act which contravenes the provisions of the 1988 Act is given a limited validity till the period of the permit expires, and cannot be continued beyond the expiry date of the permit. If that be so, the renewal of the permits applied for by the appellant will contravene the provisions of the 1988 Act which is not permissible and renewal cannot be granted. 10. A question may arise as to whether persons holding more permits than allowed under S.71(4) of the 1988 Act, when that Act came into force, can have an option to apply for renewal of permits within the statutory limit of their choice. 10. A question may arise as to whether persons holding more permits than allowed under S.71(4) of the 1988 Act, when that Act came into force, can have an option to apply for renewal of permits within the statutory limit of their choice. No argument was advanced before us in that line and we express no opinion on that question. The matter argued was only as to whether the prohibition contained in S.71(4) will apply to a renewal application under S.81 of the 1988 Act which alone we have answered on the facts of the case. 11. Under the impugned judgment, the learned Single Judge has held that "renewal of a permit envisaged in the new Act can be granted only in respect of a permit granted under this Act". In coming to that conclusion the learned judge has also relied on the definition of 'permit' contained in S.2(31) of the 1988 Act. We find it difficult to agree with this finding. The question argued was as to whether the words "under this Act" occurring in S.2(31) qualify only "an authority prescribed in this behalf or qualify all the three authorities mentioned in that Section. But it is not necessary to resolve that controversy, for, even otherwise, permits issued under the 1939 Act shall in certain circumstances be deemed to be permits issued under the 1988 Act. We have already held that an order granting a permit under the 1939 Act shall be deemed to be one issued under the corresponding provisions of the 1988 Act under S.217(2) (a) of that Act, if it is not inconsistent with the provisions of that Act. Any thing done or any action taken under the 1939 Act is also saved under that Section so long as it is consistent with the 1988 Act. Certainly grant of a permit before 1-7-89 is a thing done or an action taken under the 1939 Act and it shall be deemed to have been done under the 1988 Act so long as it is consistent with the later Act. In that view of the matter, a permit issued under the 1939 Act, if it is not inconsistent with any of the provisions of the 1988 Act, shall be deemed to be a permit issued under that Act and can be renewed under the provisions of S.81 of the latter Act, if other conditions necessary are satisfied. In that view of the matter, a permit issued under the 1939 Act, if it is not inconsistent with any of the provisions of the 1988 Act, shall be deemed to be a permit issued under that Act and can be renewed under the provisions of S.81 of the latter Act, if other conditions necessary are satisfied. To that extent we disagree with the learned judge and hold that permits issued under the 1939 Act which are saved under S.217(2) (a) of the 1988 Act shall be deemed to be permits issued under the latter Act and an application for renewal of such permits is maintainable. 12. As we have answered the first question against the appellant in W.A No. 34 of 1991, it is not necessary to consider the second question regarding the ambit of S.81(4) of the 1988 Act. But on a reading of the Section we agree with the learned single judge that the grounds mentioned in that sub-section are exhaustive and not illustrative for the purpose of evaluating the financial condition of an applicant for renewal of a permit. 13. In the result, we agree with the judgment of the learned Single Judge that the applications for renewal filed by the appellant in W.A No. 34 of 1991 are not maintainable, subject to what is stated in paragraph 11 of this judgment and both the Writ Appeals are dismissed. No Costs.