R.Mageswari v. A.Sengoda Goundar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 01-12-2008CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT APPEAL Nos.1954 TO 1961 OF 2002 AND 2771 TO 2774 OF 2003W.A.No.1954 OF 2002 :R.Mageswari...Appellant/ Ist Respondent in W.P.14654/93-vs-1.A.Sengoda Goundar2.The State Transport Appellate Tribunal, City Civil Court Buildings, Chennai – 600 104.3.The Regional Transport Authority, Salem at Namakkal....Respondents/ Petitioner/ Respondent 2 and 3 in W.P.14654/93M. Jayanthi... Ist Respondent in W.P.14652/93/ Appellant in W.A.1955/02K.S. Krishnaveni... Ist Respondent in W.P.14653/93/ Appellant in W.A.1956/02M. Umamageshwari... 3rd Respondent in W.P.14651/93/ Appellant in W.A.1957/02K.S. Krishnaveni... Ist Respondent in W.P.13116/93/ Appellant in W.A.1958/02M. Jayanthi... Ist Respondent in W.P.13117/93/ Appellant in W.A.1959/02M. Uma Mageshwari... Ist Respondent in W.P.13114/93/ Appellant in W.A.1960/02R. Mageshwari... Ist Respondent in W.P.13115/93/ Appellant in W.A.1961/02 https://hcservices.ecourts.gov.in/hcservices/ V.P. Palanisamy... Ist Respondent in W.P.13118/93/ Appellant in W.A.2771/03A.R. Muthuraja... Ist Respondent in W.P.13119/93/ Appellant in W.A.2772/03K.C. Muniappan... Ist Respondent in W.P.13120/93/ Appellant in W.A.2773/02P. Gopal... Ist Respondent in W.P.13121/93/ Appellant in W.A.2774/03VSSri Venkateswara Servicerep by its Managing PartnerN. SriranganEdapadi Salem District... Petitioner in W.P. 14652/93/ IstRespondent in W.A.1955/02R. Chettia GounderVeerappan Palayam pudurEdapadi,Salem District... Petitioner in W.P.14653/93/ Ist Respondent in W.A.1956/02M.K. Shanmugam... Petitioner in W.P.14651/93 / Ist Respondent in W.A.1957/02Anna Transport Corporation Ltd.,rep by its Managing DirectorNo.12 Ramakrishna roadSalem-7... Petitioner in W.P. 13116, 13117, 13114, 13115/93ISt Respondent in W.A.1958, 1959,1960, 1961/02M. Uma Maheswari... Respondent in W.P.13118/93/ IstRespondent 2771/03K.S. Krishnaveni... Respondent in W.P. 13119/93/ IstRespondent in W.A. 2772/03R. Maheswari... Respondent in W.P. 13120/93/ IstRespondent in W.A. 2773/03M. Jayanthi... Respondent in W.P. 13121/93/ IstRespondent in W.A. 2774/03 https://hcservices.ecourts.gov.in/hcservices/ The state Transport Appellate TribunalCity Civil Court BuildingsChennai- 600 104... Respondents 2 in W.P. 14652/93, 14653, 14651/93, Respondent 2 inW.A.1955, 1956, 1957/023rd Respondent in W.P. 13116, 13117, 13114, 13115, 13118, 13119, 13120, 13121/933rd Respondents in W.A.1958, 1959, 1960, 1961/02, 2771/03, 2772, 2773, 2774/03The Regional Transport AuthoritySalem At Namakkal... Respondent 3 in W.P. 14652/93, 14653, 14651/93Respondent 3 in W.A. 1955/02, 1956, 1957/022nd Respondent in W.A. 1958/02,1959, 1960,1961/02, 2771, 2772,2773, 2774/032nd Respondent in W.P.13116,13117, 13114, 13115, 13118,13119, 13120, 13121/93For appellants in W.A.Nos.1954 to 1959/2002 : Mr.T.Padmanabhan,for Mr.R.Natesan.For appellants in W.A.Nos.1960 & 1961/2002 : Mr.V.T.Gopalan,Senior Counsel,for Mr.C.R.KrishnamoorthyFor appellants in W.A.Nos.2771 to 2774/2003 :Mr.M.Palani.For respondents 2 and 3 in all W.As.: Mr.D.Sreenivasan,Spl.Govt.Pleader.For respondent 1 in W.A.Nos.1955 to 1957/2002 :Mr.M.Palani https://hcservices.ecourts.gov.in/hcservices/ For respondent 1 in W.A.Nos.1958,1959 and 1960/2002 :Mr.V.R.KamalanathanFor respondent 1 in W.A.No.1961/2002 : Mr.T.ChandrasekaranFor respondent 1 in W.A.No.2771/2003 :Mr.AR.L.Sundaresan,Senior Counsel,for M/s.AL.Ganthimathi.For respondent 1 in W.A.Nos.2772 to 2774/2003 :Mr.T.Mohan,for Mr.R.Natesan.Writ Appeal filed under clause 15 of the letter patent againstthe order of Writ Petition.W.P.13114 to 13117/93, 14654, 14652, 14654, 13118 to 13121/93Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorari calling for the recordson the file of the first respondent dated 8.6.93 made in AppealNo.Nil/92, 241/92, 239/92, 238/92, 240/92.COMMON JUDGMENTV.DHANAPALAN,J.While Writ Appeal Nos.1954 to 1961 of 2002 have beenpreferred by the appellants, who are the applicants for grant ofstage carriage permits, against the order of a learned single Judge,dated 21.12.2001, setting aside the order of the State TransportAppellate Tribunal, Madras, dated 08.06.1993, directing for grant ofpermits in favour of the appellants, W.A.Nos.2771 to 2774 of 2003are preferred by the objectors/private existing operators againstthe order of another learned single Judge, dated 03.07.2000,dismissing the writ petitions to set aside the very same order ofthe State Transport Appellate Tribunal, dated 08.06.1993. 2. Though all these Writ Appeals involve a common questionof law, as they are divided and preferred against two contradecisions, it is proper to segregate these appeals into twocategories, while giving disposal.3. In the first category, let us decide W.A.Nos.1954 to1961 of 2002.Of these cases, W.A.No.1960 of 2003 is taken forreference. In this case, the appellant had applied for grant of astage carriage permit in respect of the route Kumarapalayam toEdapadi under the Motor Vehicles Act,1988, in short, "the Act", https://hcservices.ecourts.gov.in/hcservices/ before the Regional Transport Authority, Salem, at Namakkal. Theroute falls under the classification of ordinary stage carriageservice, as contemplated under the Tamil Nadu Motor VehiclesRules,1989, in short, "the Rules". The route applied for overlapson the approved scheme in respect of the route Edapadi Bus Stand toKumarapayalam, published in the Tamil Nadu Government Gazette, dated22.06.1990, which scheme was challenged before this Court along withother approved schemes and all the schemes were struck down by aDivision Bench of this Court, aggrieved over which, Anna TransportCorporation, along with its sister transport undertakings, preferredSpecial Leave Petitions before the Supreme Court. During thependency of the Special Leave Petitions, the Apex Court, in a casearising from the State of Rajasthan, involving identical question oflaw, took a contra view to that of this Court and impliedlyoverruled the said judgment. Thereafter, the Regional TransportAuthority, taking into account the fact that the grant route appliedfor overlaps on the approved scheme route, rejected the application,by its order, dated 19.05.1992. Anguished over the said order ofthe authority, the appellant preferred an appeal on the file of theState Transport Appellate Tribunal. Pending the said appeal, theSupreme Court set aside the judgment of the Division Bench of thisCourt, by an order dated 16.04.1993 and, consequently, the schemeswere restored. The State Transport Appellate Tribunal held that theschemes relied upon by the Corporation did not affect the grantroute applied for by the appellant, as that being mofussil service,whereas the scheme contemplated town service. On that ground, theTribunal directed the authority to grant permit in favour of theappellant. The said direction was challenged by the Corporation andalso the private operators/objectors in the Writ Petitions.4. The learned single Judge, after analysing Rule 3 Sub-rules (e) (i) (p) as regards "City and Town Service", "expressservice" and "ordinary service" and holding that there was noclassification of service as mofussil either under the Act or underthe Rules and that the permit sought to be granted overlapped on anapproved scheme route, allowed the Writ Petitions, setting aside theorder of the Tribunal. Hence, these appeals, at the instance of theapplicants.5. Learned counsel for the appellant would contend thatthe draft and approved schemes and nationalisation have always madea clear distinction between express buses, mofussil buses and cityor town buses; there cannot be a town service route for more than 30kms. and one of the termini has to be inside a notified town area;the seating capacity of the vehicles is also hugely different sincethe town services provide for carrying almost 85 passengersincluding standing passengers and that the word 'ordinary' does notmean moffusil buses. It is also his contention that there is adifference between mofussil and town services; the scheme is https://hcservices.ecourts.gov.in/hcservices/ intended only for plying ordinary services as per clause 3 andclause 6 shows that the State Transport Undertaking is intending torun only town services but not mofussil services; Edapadi toKumarapalayam is an ordinary town service route only and, hence, thefindings of the learned single Judge with regard to theinterpretation of the scheme are erroneous and against the settledlaw on the subject. In his last limb of contentions, the learnedcounsel would submit that the Motor Vehicles Act 1988 has taken awaythe right of the existing operators to file objections and thepurpose of enacting the Act was to liberalise the grant of permits.The learned counsel would cite a decision of the Supreme Court inMithilesh Rani and other v. RTA, Dehradun,AIR 1994 Supreme Court2229, wherein it was held as under : "12. A perusal of the said paragraphwould show that the expression “alliedroutes” referred to the extensions of theroute concerned therein. The said expressioncannot take in the route concerned herein.No route-map was also filed in the said writpetition from which it can be said that the“allied routes” mentioned in the said writpetition included the route in questionherein....In such a situation, there couldnot have been any objection to the grant ofpermits to the appellants on the saidroute...."6. On the other hand, learned counsel for the respondentswould vehemently argue that these appeals were pending on the dateof notification of the Special Act and the route applied foroverlapped the notified route; therefore, once the grant routeoverlapped on such notified route, on the teeth of Section 7 of theState Act viz., Special Act, the appeals automatically stood abatedirrespective of the terms of the scheme; the word 'mofussil' hadbeen stated in the format of the old scheme prescribed under therepealed rules and the word 'ordinary' is not found in that schemeand consequently in the absence of mofussil service in the presentrule and format prescribed thereunder, it cannot be said that theword 'ordinary' denotes only an ordinary service within the town andit does not exclude mofussil service. The learned counsel hasbrought to the notice of this Court a decision of the Supreme Courtin APSRTC v. Regional Transport Authority, 2005 (4) Supreme CourtCases 391, wherein it was held as follows :"11. The object of the Scheme appearsto be to nationalise the entire service.Through nationalisation of the service,effort is to provide better service to thecommuters at cheaper cost. One of the https://hcservices.ecourts.gov.in/hcservices/ exceptions to the Scheme is for existingtown services operating on the notifiedroutes. The reason for which appears to bethat the existing town services need not bedisturbed so that the commuters do notsuffer.""21. In our view, under Exception 2contained in the note appended to theScheme, subject-matter of the presentappeals, permits can be issued only toexisting town services operating on thenotified routes. This means only existingoperators on the notified routes areeligible for permits. Fresh applicants orfuture applicants are totally ineligiblefor getting permits for town servicesoperating on notified routes...."7. We have heard the learned counsel for the parties andalso gone through the records. 8. There is no classification of service as "mofussil"either under the Act or under the Rules and the permit sought to begranted overlapped on an approved scheme route. For the schemeKumarapalayam to Edapadi, the portion of route that overlapped isKumarapalayama to Annamarkoil.9. Section 103 (2) of the Act reads as under :"For the purpose of giving effect to theapproved scheme in respect of a notified areaor notified route, the State TransportAuthority or as the case may be, the RegionalTransport Authority concerned may, by order.-(a) refuse to entertain any applicationfor the grant or renewal of any other permitor reject any such application as may bepending. 10. The above provision would clearly indicate that wherethere is an approved scheme already existing in respect of anotified area or notified route, the Regional Transport Authoritymay refuse to entertain the application for grant of permit orreject any such application. The same has exactly happened in thesecases. In other words, as there is an approved scheme alreadyexisting in respect of the notified route viz., Kumarapalayam toEdipadi, the Regional Transport Authority has rejected theapplication of the appellant for grant of permit, which cannot befound fault with. https://hcservices.ecourts.gov.in/hcservices/

11. It is equally relevant to extract Section 7 of theTamil Nadu Motor Vehicles (Special Provisions) Act, popularly knownas Tamil Nadu Act 41 of 1992, in short, "the Special Act", whichreads thus :"7.Pending applications and appeals forgrant of new permits to abate.-Notwithstanding anything contained in anylaw for the time being in force, everyapplication for grant of new permit on anotified route and all appeals arisingtherefrom or relating thereto, made orpreferred before the date of publication ofthis Act in the Tamil Nadu GovernmentGazette, and pending before any court, withany officer, authority or tribunalconstituted under the Motor Vehicles Act, onthe said date, shall abate." 12. From the above provision, it is manifest that everyapplication for grant of new permit on a notified route and allappeals, arising therefrom or relating thereto, made or preferredbefore the date of the publication of this Act in the Tamil NaduGovernment Gazette and pending before any Court or with any officer,authority or tribunal, on the said date, shall stand abated.13. The Tamil Nadu Motor Vehicles (Special Provisions)Act,1992, received the assent of the President on 31.07.1992 and thesame was published in the Tamil Nadu Government Gazette on the sameday. So, on the date of publication of this Act in the Gazette, theappeal filed by the appellant was pending. In addition, the grantroute applied for overlapped on the notified route. As such, on thedate of enactment of this Special Act, the appeal filed by theappellant was hit by Section 7. Further, on the date when the appealwas heard by the Tribunal i.e., 08.06.1993, there was no appealpending in the eye of law, as the same stood abated on the date ofnotification of the Special Act. This Special Act is meant forstage carriage service and when it contemplates any route covered byan approved scheme route, whether it is town or ordinary or express,no class of service can be granted on such approved schemes. Thatbeing the legal position, the Tribunal committed an error indirecting for grant of permit on the notified route, on the strengthof classification of services within the stage carriage. 14. It is also quite appropriate to quote sub-section (4)of Section 6 of the Special Act, which runs as follows:"Notwithstanding anything contained inthis Act, no new permit shall be granted https://hcservices.ecourts.gov.in/hcservices/ under this Act to any person on any routecovered by an approved scheme." 15. It is needless to mention that the Special Actprevails over the General Act. The above provision also makesevident that no new permit shall be granted under the Special Act toany person on any route covered by an approved scheme, as,admittedly, the route in question is a notified route and covered bythe approved scheme. Therefore, there cannot be two permits on oneparticular notified route, covered by the scheme.16. The permits sought for by the private operators in thepresent case cannot be equated with special permits envisaged underSection 88 (8) of the Motor Vehicles Act 1988. The object ofgranting special permits is totally different. Special permits aremeant to cater to special needs of the public on special occasionslike marriage parties, pilgrimage etc. In other words, the permitssought for by the private operators are stage carriage permits forgeneral purpose and not for a particular purpose or occasion. Werethe permits sought for special in nature, the situation would havebeen different.17. Though the case of Mithilesh Rani was cited by thelearned counsel for the appellant to show that the Supreme Court wasnot inclined to entertain the objections raised by the privateoperators, it is not applicable to the case on hand, for the reason,that, pursuant to the said decision, the Tamil Nadu Motor Vehicles(Special Provisions) Act was enacted, which prohibited the grant ofnew permits. 18. Similarly, the decision cited by the learned counselfor the respondents in APSRTC's case to the effect that onlyexisting operators on the notified routes are eligible for permitsand fresh applicants or future applicants are totally ineligible forgetting permits for town services operating on notified routes doesnot bind this Court because, in that case, a constitution bench ofthe Supreme Court arrived at such a decision, based on exception 2,contained in the note appended to the scheme, which was categoricalthat the scheme should not affect the existing town servicesoperating on the notified routes. 19. In view of the above statutory provisions,observations and findings, these Writ Appeals fail and aredismissed, confirming the order of the learned single Judge. Nocosts. https://hcservices.ecourts.gov.in/hcservices/

20. Following the dismissal of the above Writ Appeals, thesecond category of cases viz., W.A.Nos.2771 to 2774 of 2003 standallowed, setting aside the order of the learned single Judge. Nocosts.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dixitTo1. The RegistrarCity Civil CourtChennai2. The state Transport Appellate TribunalCity civil Court BuildingsChenani-1043. The Regional Transport AuthoritySalem At Namakkal4. The Managing DirectorAnna Transport CorporationNo.12 Ramakrishna RoadSalem-71 cc to Mr.M. Palani Advocate, Sr. 669657 ccs to Mr.R. Natesan, Advocate, SR. 67108, 671072 ccs to Mr.C.R. Krishnamurthy, Advocate, Sr. 671091 cc to Mr.V.R. Kamalanathan, Advocate, SR. 671661 cc to Government Pleader, Sr. 67490W.A.No.1954 of 2002 BATCHNSM (CO)kk 26/12