JUDGMENT S.R. Singh, J.
1. The grievance of the petitioners in the instant petition is centred on two orders firstly the order dated 25.5.1998 passed by the State Transport Authority, U. P., Lucknow rejecting their application for renewal of Stage Carriage Permit, and secondly, the revisional order dated 31.8.1998, by which their revision No. 33 of 1998 preferred against the order dated 25.5.1998 came to be dismissed by the State Transport Appellate Tribunal, U. P., Lucknow.
2. The facts draped in brevity and shorn of unnecessary details are that the Stale Transport Authority. U. P.. Lucknow (in short the S.T.A.'). released 26 Stage Carriage Permits by resolution/order dated 23.11.1992 including one Permit in favour of the petitioners to ply their vehicle on the route in question, namely, Meerut-Gangoh via Rohta-Barnava-Daha-Budhana-Shamit-Jhinjhana-Bidault (New Yamuna Bridge)-Basech, The order dated 23.11.1992 was taken up in challenge by Sheetal Prasad, Gajraj Singh and Ugrasen before the State Transport Appellate Tribunal, U. P., Lucknow (in short the 'S.T.A.T.') in three separate revisions (being revision Nos., 335 of 1992. 336 of 1992 and 1 of 1993 respectively). Sheetal Prasad Jain was an existing Operalor on Muzaffamagar-Budhana-Kandhla-lssopurtil and allied routes. Cajraj Singh, revisionist in revision No. 336 of 1992 had been plying his vehicle on Rohtah-Parnava-Baraut and allied routes, while Ugrasen was an Operator on Muzaffarnagar-Shamiti-Kairana-Yamuna Bridge and allied routes. The Tribunal allowed the three revisions aforestated and set aside the resolution/order dated 23.11.1992 by means of the order dated 21.6.1993 premised on the ground that the portions of the route in question were part of notified routes, the draft scheme of which was published-under Section 68C of the Motor Vehicles Act. 1939 (in short the 'repealed Act') on 13.2.86. Subsequently, the scheme came to be approved by Notification No. 1635/30-2-92-365/85, dated May 29, 1993. The petitioner and other aggrieved operators instituted a writ petition, being No. 1531/M/S/1993, at the Lucknow Bench of this Court, in which following interim order which still endures was passed on 1.7.1993.
"Until further orders, the impugned order dated 21.6.1993 (Annexure-8) is hereby stayed. It shall be open to move an application for modification or vacation of this interim order".
3. The Permit granted in favour of petitioners was valid upto 30.11.1997. Therefore, an application came to be moved by them for renewal of the permit. The matter received consideration of the State Transport Authority. U. P., Lucknow in its meeting held on 25.5.1998. On behalf of the U. P. State Road Transport Corporation, an oral objection was mooted that part of the route had since been notified vide notification dated 29.5.1993 and as such, application for renewal of the permit was liable to be rejected in view of the provisions contained in Section 103(2)(g) read with Section 104 of the Motor Vehicles Act, 1988 (in short the 'new Act'). On behalf of the petitioner, it was canvassed before the S.T.A.. U. P., Lucknow that the route in question did not form part of the notified route, that in any case, the operation of notification dated 29.5.1993 had been stayed by the High Court in number of writ petitions. The application for renewal of permit met the fate of rejection vide order/resolution dated 25.5.1998 passed by the State Transport Authority, U. P., Lucknow which order received approbation of the State Transport Appellate Tribunal, U. P..
Lucknow vide order dated 31.8.1998. It is these two orders which have been bracketed for challenge in the instant petition.
4. Without intruding into the continuity of facts, it may be stated that a draft scheme was earlier published under Section 86C on February 26. 1959 and approved under Section 68D of the repealed Act on September 29. 1359. But it came to be quashed as against 50 Operators by this Court vide judgment dated October 31. 1961 rendered in a group of writ petitions filed by 32 Operators and judgment dated 16.2,1962 passed in favour of 18. other Operators. The State Government was accorded the liberty to give fresh hearing to the aforesaid 50 Operators on the basis of the original proposal. The approved scheme became final as against other Operators. The judgments of this Court, were upheld by the Apex Court in Jeevannath Bahal and others v. State of U. P.. Civil Appeal No. 1616 of 1968 by means of the judgment dated April 3, 1968 observing thus :
"The effect of the order passed by the High Court in the two groups of the writ petitions was clearly that the scheme in its essence was not affected, but it was directed that it was not liable to be enforced against the 32 petitioners who applied to the High Court in the first round of petitions and against 18 petitioners in the second group of petitions. If that be the true effect of the order therein in our judgment, a scheme in existence which must have the statutory operation contemplated by Section 68F of the Motor Vehicles Act.
5. It appears that some of the Operators in respect of whom the State was accorded the liberty to give fresh heanng, instituted suits and obtained injunctions from different Courts scuttling the hearing of the matter before the State Government and, therefore, the matter lingered for well over 25 years. Thereafter two writ petitions were filed by Shri Chand, etc. in the Supreme Court under Article 32 of the Constitution, assailing the validity of the proceeding which were pending before the State Government on the ground of delay, discrimination and violation of Articles 14 and 19(1)(f) of the Constitution. The draft scheme dated February 26, 1959 was quashed with liberty given to the State Government "to publish a fresh draft scheme". The relevant directions given by the Apex Court in Shri Chand v. Government of U. P., AIR 1986 SC 242, read thus :
"Even though the judgment was delivered by the High Court of Allahabad in the year 1961 It has not been possible for the State Government to consider whether approval should be given to the draft scheme either with or without modification as regards the 50 Operators pursuant to the judgment of the High Court. All the petitioners in the writ petitions who were permitted to operate their vehicles have been running their services all these 24 years. It has thus resulted in discrimination. We are informed that the State Government has not been able to hear the objections to the scheme as per the judgment of the High Court because of certain orders of injunction passed by the civil courts restraining the State Government from proceeding with the hearing in suits filed by or at the instance of one or the other of the 50 Operators who have been running their services on the route in question. It is very strange that the civil courts have issued such orders of injunction from time to lime thus effectively preventing the State Government from disposing of the matter. We are of the view that this is a case in which civil courts should not have issued an order of injunction at all since such suits are barred under Section 9 of the Code of Civil Procedure. Be that as it may, the situation created by the unreasonable delay in the approval of the scheme has not merely resulted in the violation of Article 14 of the Constitution but also of the fundamental right of the other operators guaranteed under Article 19(1)(f) of the Constitution."
x x x x "In view of the above decisions we allow these writ petitions and quash the impugned scheme published on February 26, 1959 and the proceedings which have taken place till now pursuant thereto and direct the State Government not to proceed with the hearing of the matter. It is now open to the State Transport Undertaking of Uttar Pradesh to publish a fresh draft scheme under Section 68C of the Act if it is of opinion that it is necessary to do so. We, however, permit the State Transport Undertaking to run the stage carriage vehicles which it is now running on the route in question under permits issued pursuant to the scheme which is now quashed till 28.2.1986 or till they are replaced by temporary permits to be issued under sub-section (1A) of Section 68F of the Act after the publication of a fresh draft scheme or by permits issued under Chapter IV of the Act, whichever is earlier."
6. It is evident from the Judgment in Shri Chand's case (supra), that the draft scheme published on 26th February, 1959 and the proceedings that had taken place pursuant to the said scheme were quashed by the Supreme Court with liberty reserved to the State Transport Undertaking. Uttar Pradesh to published a fresh draft scheme, in my considered view, it was a fait accompli that the draft scheme dated February 26. 1956 and all proceeding taken pursuant thereto were quashed by the Supreme Court in Shri Chand's, case (supra) and the State Government and other authorities under the repealed Act accepted the judgment and came out with a fresh draft scheme dated February 13, 1986 prepared under Section 68C of the repealed Act. The effect of quashing the draft scheme dated February 26, 1959 and all proceedings taken pursuant thereto is that the approved scheme September 29, 1959 stood obliterated and status quo ante as on date Immediately preceding February 26, 1959 restored. The sequitor that follows is that the approved scheme September 26. 1959 degenerates into non est in the eye of law.
7. The draft scheme February 13, 1986 was accordingly published and while it was still pending, the new Act came into force with effect from July 1. 1989. Thereafter in Santosh Kumar and others u. Regional Transport Authority and others, Civil Misc. Writ Petition No. 21773 of 1989, decided on 16th March, 1990, this Court held that the draft scheme dated February 13. 1986 stood lapsed in view of Section 100(4) of the New Act. The Hearing Authority accordingly held the scheme to have lapsed. Certain Operators applied for and were granted permits for Saharanpur to Ghaziabad via Sahadra routes, etc., i.e., the routes notified vide scheme published on 13th February, 1986. Ram Krishna Verma, etc., challenged the grant by means of writ petition which came to be dismissed by Lucknow Bench of this Court vide judgment dated July 23. 1990 holding that the draft scheme would be deemed to have lapsed under Section 100(4) of the New Act and, therefore, there was no bar to grant permits. Appeals by Special Leave were filed in the Supreme Court against the judgments dated March 16, 1990 and July 23, 1990. The appeals came to be allowed uide judgment dated 31.3.1992 Ram Krishna Verma etc. etc, u. State of U. P., and others, JT 1992 (2) SC 545, holding that the approved scheme dated September 29, 1959 would "continue to be valid scheme under the Act". As regards the decision in Sri Chand's case vis--vis, the draft scheme dated February 13. 1986, it was held as under :
"What was quashed and issue of fresh draft scheme pursuant thereto, relate to only of original draft scheme operative against 50 objectors/operators and no more. Even on principle, the decision of a Bench of two Judges cannot have the effect of overruling the decision of a Bench of three Judges. The fresh draft scheme under Section 68C dated February 13, 1986 must therefore, be construed to be only in relation to 50 existing operators as per the directions ultimately emerged in Jeewan Nath Bahal's, case."
The effect of an approved scheme on the right of private operators was explained as thus :
"Consistent law laid down by this Court is that draft scheme under Section 68C and approved under Section 68D of Chapter IVA of the Repealed Act. (Chapter VI of the Act) is a law and It has overriding effect over Chapter IV of the repealed Act (Chapter V of the Act). It operates against everyone unless it is modified. It excludes private operators from the area or route or a portion thereof covered under the scheme except to the extent excluded under that scheme itself. The right of private operators to apply for and to obtain permits under Chapter IV of the repealed Act (Chapter V of the Act] has been frozen and prohibited....."
The operative part of the judgment reads thus :
"The appeals are accordingly allowed. The grant of permits to all the respondents/private operators and respondent Nos, 7 to 285 in C.A. No. 1198/92 IS.L.P. No. 9701/90] under Section 80 of the Act or any others on the respective routes, parts, or portions of the nationalised routes or February 13, 1986 draft scheme are quashed. The hearing authority shall lodge the objections of the 50 Operators including the appellants herein. The competent authority shall approve the draft scheme of 1986 within a period of 30 days from the date of receipt of the judgment ; and published the approved scheme in the gazette. The permits granted to the 50 Operators or any other shall Stand cancelled from that date, it not having expired in the meanwhile. No permits shall be renewed. Appropriate action should be taken by respondent Nos, 3 to 4 in C.A, No. 1198/92 S.L.P. No. 9701/90) to sec that all the permits granted to the 50 Operators including the appellants are seized and cancelled. The U. P. State Transport Corporation shall obtain required additional permits, if need be, and put the stage carriages on the routes to provide transport service to the travelling public immediately on publication of the approved draft scheme in the State Gazette. The appeal arising out of S.L.P. No. 2083/91 is allowed with costs throughout against respondent Nos. 4 to 13. The appeals arising out of S.L.P. Nos, 6300/91, 6701/90 and 9702/90 are allowed without costs."
8. The decision in the case of Shri Chand is unexceptionable if tested on the anvil of Articles 14 and 19(1)(f) of the Constitution. The scheme dated September 29. 1959 though held to have become final in Jeevan Nath Bahal's case as against all but the fifty operators in respect of whom the State Government was given the option to publish a fresh scheme with or without modification, could be lawfully, quashed on the ground of discrimination and violation of Articles 14 and 19(1)(f) of the Constitution. The view taken in the case of Shri Chand finds support from what has been laid down by a three Judges Bench of the Supreme Court in Vishundos Hundumal v. State of Madhya Pradesh, AIR 1981 SC 1636. By quashing the draft scheme published on February 26, 1959, Shri Chand has not, in my opinion, overruled Jeevan Nath Bahal but it has been so construed in Ram Krishna Verma and, therefore, this Court is bound to adopt the construction put on Shri Chand by the Apex Court in Ram Krishna Verma and hold that the draft scheme dated February 13, 1986 was confined only "in relation to 50 existing operators as per the directions ultimately emerged in Jeevan Nath Bahal's case".
9. However, renewal of permit in the instant case has not been denied on the dint of approved scheme September 26, 1959 but on the basis of the legal consequences flowing from the approved scheme dated May 29, 1993. This is clearly evident from the judgment of the Tribunal the relevant portion of which is excerpted below :
"The Notification dated 29.5.1993 is a law under Chapter VI of the Act. It has statutory force. Unless there is an order of the Court staying its operation in his favour a person cannot question it. It has to be given effect to by the transport authorities until a competent court quashes it or declares it ineffective or illegal. Such pronouncement has not taken place so far with regard to the concerned Notification of approval of the scheme. The S.T.A. therefore, had to act according to the scheme approved by the Notification dated 29.5.1993 and the revisionists could not resist it. The conclusion is that the revisionists applications for renewal of their permits in respect of the route, three sections of which are overlapped by notified routes, have been rightly refused."
10. It is, therefore, unnecessary to delve into the effect of the scheme dated September 29. 1959 vis-a-vis the petitioners' claim for renewal of their permit for the validity of the impugned orders is to be, tested on the anvil of the reasons assigned therein.
11. A perusal of the impugned resolution No. 5 dated 25.5.1998 would be eloquent that all the eleven applications for grant (renewal) of Permits for Meerut-Gangoh route were rejected by the S.T.A.. U. P., Lucknow on the ground that Meerut-Rohta-Barnava. Shamli-Bidauli ; and Basee-Gangoh, sections of Meerut-Gangoh route, overlapped the notified routes and, therefore, no regular stage carriage permits to private operators can be granted in view of prohibition embodied in Section 103(2)(a) read with Section 104 of the new Act. The Tribunal took the same view. Legally, the view is unexceptionable. A composite reading of sub-section (2) of Section 103 and Section 104 of the Act converges to an inescapable conclusion that the Staje Transport Authority or, as the case may be. Regional Transport Authority "shall not grant any permit except in accordance with the provisions of the scheme". The legal position in this respect is no more a delphic oracle, in Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal, (1975) 1 SCR 615, the Supreme Court held the view as follows :
"Any route or area either wholly or partly can be taken over by a State Undertaking under any scheme published, approved and notified under the provisions of Chapter IV-A of the Act inserted by Section 62 of the Act 100 of 1959. If, therefore, the scheme prohibits private transport owners to operate on the notified area or route or any portion therefore, the Regional Transport Authority cannot either renew the permit of such private owners or give any fresh permit in respect of a route which overlaps the notified route, in considering the question whether when one party has monopoly over a route, a licence can be granted to any other party over any part of that route, the distinction between "route" and "highway" is not at all relevant. Where a private transport owner makes an application to operate on a route which overlaps even a portion of the notified route, then that application has to be considered only in the light of the scheme as notified. If any conditions are place then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected. There is no justification for holding that the integrity of the notified scheme is not affected if the overlapping is under five miles or because a condition has been stipulated in the permit that the operation will not pick up or set down any passengers on the Overlapped route."
12. In Adarsh Bus Travel Service v. State of U. P. and others. 1985 (Supp-) 3 SCR 661, it was held as under :
"A perusal of Section 68C, Section G8D (3) and Section 68FF in the light of the definition of the expression 'route' in Section 2 (28A) appears to make it manifestly clear that once a scheme is published under Section 68D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other persons of otherwise, no person other than the State Transport Undertaking may operate on the notified or national route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicle on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route or area. The private operator cannot take the plea of inconvenience of the public. If needed there is any need for protecting the travelling public from inconvenience the State Transport Undertaking and the Government will make a sufficient provision in the scheme itself to avoid inconvenience being caused to the travelling public."
In Ram Krishria Verma, etc. v. State of U. P. JT 1992 (2) SC 5.15, the Supreme Court has reiterated the same view. It is thus settled that Section 104 of the New Act creates an absolute bar against grant of any permit "except in accordance with the provisions of the scheme" and except also to the extent a temporary permit is granted under the proviso to Section 104 in respect of notified area or notified route.
13. However, the question that begs an answer is whether the scheme published on February 13. 1986 stood lapsed and the route in respect of which the petitioner was granted permit, renewal of which was refused by the orders impugned herein, is not a part of any notified route, in this connection, it would be worthwhile to examine the legal position first and for that purpose, the provisions contained in subsections (3) and 14) of Section 100 of the Act are quoted below :
"(3) The scheme relating to the proposal as approved or modified under sub-section (2) shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route ;
Provided that no such scheme which relates to any inter State route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government.
(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under subsection (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under sub -section (1), the proposal shall be deemed to have lapsed.
Explanation.--in computing the period of one year referred to in this sub-section, any period or periods during which the publication of the approved scheme under sub-section (3) was held up on account of any stay or injunction by the order of any Court shall be excluded."
14. The draft scheme published on February 13, 1986 was viewed by the Hearing Authority to have lapsed by operation of Section 100(4) of the Act. The order passed by the Hearing Authority received countenance from the High Court but it was set aside by the Apex Court in the case of Ram Krishna Verma, on the finding that on an harmonious construction of Sections 100(4) and 217(2)(e), one year period stipulated by Section 100(4) of the new Act would begin to run from the date of its commencement, i.e., 1st July, 1989. The same view was echoed by the Apex Court in its earlier decision in Krishna Kumar v. State of Rajasthan and others, JT 1991 (3) SC 470. If the law so declared is applied in relation to the draft scheme dated February 13. 1986, the inescapable conclusion would be that the scheme stood lapsed on 1st July, 1990 as there is nothing to show that the publication of the approved scheme under subsection (3) of Section 100 was stayed on account of stay or injunction by order of any Court, in any case, the scheme would be liable to be declared to have lapsed if it is found that it was not approved and published "within 30 days from the date of the judgment" in that the competent authority was directed by the Apex Court to lend approbation to the draft scheme dated February 13, 1986 "within a period of 30 days from the date of receipt of the judgment and publish the approved scheme in the gazette". The draft scheme dated 13.2.1986 was not approved as a whole vide order dated 23.5.1992 (Annexure-8) by which it was approved as against 50 Operators R. K. Verma and others, who were concerned with only one of 39 routes namely Saharanpur-Sahadra-Delhi route and it was conspicuously made clear in the order that objections in respect of the remaining 38 routes would be separately dealt with. The objectors were required to file affidavits in support of their objections by 25.6.1992. There is no material on record of this petition as to when was the scheme approved in respect of the remaining 38 routes including the route in question.
15. Sri R. N. Singh. Senior Counsel assisted by Sri A. P. Sahi submitted that the scheme did not receive approbation of the Hearing Authority even with the time schedule fixed by the Supreme Court and, therefore, it stood lapsed on expiration of the period of approbation fixed in the case of Ram Krishna Verma (supra). Sri L. P. Naithani, Senior Advocate assisted by Sri H. P. Dubey, appearing for the respondents, submitted that in view of the judgment of the Apex Court in Jeevan Nath Bahal's, case which was followed in Ram Krishna Verma. the question of the scheme having lapsed did not arise. On consideration of the submissions made by the learned counsel appearing for the parlies. 1 feel pursuaded to the view that according to Sections 100(4) and 217(2)(e) of the New Act, the draft scheme dated February 13, 1986 made under Section 68C of the repealed Act, stood abated on July \, 1990 by reason of the scheme having not been lent approval within one year from the date of commencement of the New Act. However, in view of the directions issued by the Apex Court in the case of Ram Krishna Verma which directions, in my opinion, must be deemed to have been issued in exercise of power under Article 142 of the Constitution, the scheme ought to have been approved within 30 days from the date of receipt of a copy of the judgment, in case, therefore, it is found that the scheme was not approved within 30 days of the receipt of the copy of judgment, it would be deemed to have lapsed Immediately on expiration of 30 days and consequently the notification dated 29.5.1993 would not be of any legal efficacy for no structure can stand without a foundation. Neither the S.T.A nor the S.T.A.T. addressed itself to this aspect of the matter. The parties have not brought any material on the record of the writ petition which could be made the basis for an authoritative decision by this Court after ascertaining the date on which the judgment of the Apex Court in Ram Krishna Verma was produced before the Competent Authority, in my opinion, therefore, the matter calls for being remitted to S.T.A., U. P., Lucknow for consideration of the application for renewal of permit afresh.
16. That apart, discrimination in the implementation of the approved scheme dated 29.5.1993 may also give rise to a cause action. The notification has been stayed and on the basis of the stay orders granted by the High Court in various writ petitions, certain private operators have been able to obtain permits and to ply their vehicles on certain routes covered by the notification even though they cannot do so "in accordance with the provisions of the scheme", if at all the scheme has the force of law. Vishnudas Hundumal's case, AIR 1981 SC 1636, lends countenance to this view. The stay would have the effect of keeping the scheme in abeyance and, therefore, the bar created by Section 104, cannot be pressed into service against the petitioners so long as the notification remains stayed.
17. Accordingly, the petition succeeds and is allowed. The impugned orders 25.5.1998 and 31.8.1998 are quashed. The S.T.A., U. P., Lucknow Is directed to reconsider the matter and decide the petitioner's application for renewal for Stage Carriage permit afresh in accordance with law and in the light of observations made in the body of this judgment after affording opportunity of hearing to the concerned parties including the S.R.T.'C., Uttar Pradesh.