of the case is that U.P.State Road Transport Corporation created under section 3 of the Road Transport Corporation Act, 1950 is a State Transport undertaking within the meaning of Section 2 (42) (ii) of the Motor Vehicles Act, 1988. The State Transport Authority granted permits to the petitioner corporation on two routes i. e. (1) Delhi- Kotdwar via Modi Nagar-Meerut-Meerapur-Bijnor and (2) Delhi-Nazibabad via Bijnor-Meerapur-Meerut-Ghaziabad. On both the routes the distance between Bijnor and Najibabad can be travelled either through Mandawali or Kiratput, but in the permits there was no restriction for the corporation to ply only via Mandawali. Respondent no.4, a private operator, filed Writ Petition No.755 of 2002 before Lucknow Bench of the High Court. The said writ petition was disposed of directing the Transport Commissioner, Lucknow to decide the representation of respondent no.4 as to whether the corporation was entitled to ply its vehicles via Kiratpur. By order dated 26.02.2002 the Transport Commissioner decided the representation recording a finding that as the portion Bijnor-Najibabad via Kiratpur was non notified, hence the permits were not issued to the corporation to ply on the said portion. On this basis the corporation has been restrained from plying its vehicles via Kiratpur and instead should ply its vehicles via Mandawali only.
3. The learned counsel for the petitioner submits that Chapter (V) of the Motor Vehicles Act, 1988 provides for control of transport vehicles. The provisions of the said chapter lay down the procedure for applying and grant of permits on non notified route. Chapter VI of the Act contains special provisions relating to 'Transport Undertakings' and provides for preparation and publication of scheme providing for transport services to be run by the State Transport Undertakings to the complete or partial exclusion of other persons.
4. It is contended that once a scheme under Chapter VI of the Act is notified, only such transport undertakings or a person named in the scheme can be allowed to operate his vehicles on the notified route; that prior to the enactment of 1988 Act the Motor Vehicles Act, 1939 was in force and the Rules made under the said Act were known as U.P.Motor Vehicles Rules, 1940. The permits for non-notified routes were issued under Rule 51 while permits for notified rules were issued under Rule 70-A of the said Rules. A bare perusal of the permits, filed as Annexure-2 to the writ petition, indicates that the permit was issued to the corporation under Rule 51 of 1940 Rules.
5. It is submitted that permits issued on notified routes are co-terminus with the life of the scheme. In paragraphs 9 and 10 of the judgment reported in AIR 1998 Supreme Court 3110 (UPSRTC vs. RTA and others) it has been held that renewal of such permits is not necessary till the scheme subsists. Therefore, the very fact that the permits granted to the corporation for the route in question were being renewed from time to time clearly indicates that the permits had been issued for non-notified route i.e. via Kiratpur.
6. The order impugned is assailed on the ground that the Transport Commissioner has no jurisdiction to interpret or vary a permit issued under the Act, as it is not a competent authority under the 1988 Act. The permits are issued by either the Regional Transport Authority or the State Transport Authority, as the case may be, as provided under sections 68, 71, 74 and 80(3) of the Motor Vehicles Act, 1988 which clearly indicates that the permit was for the non-notified portion. Hence the findings recorded in the impugned order that the permit was only for a notified route is absolutely perverse and against the material on record. The petitioner corporation being the State Transport Undertaking has preferential right for grant of state permits under the first proviso of Section 71(3) of the 1988 Act with respect to non-notified routes (as also held by a division bench of this court in its judgment dated 20.12.2005 in Civil Misc. Writ Petition No.76001 of 2005 (Jamila Begum vs. State of U.P. and others). In the aforesaid judgment the division bench held as under:-
"The provisions of Section 71 provide for procedure to be adopted by RTA while considering the applications for Stage Carriage Permits. Proviso to sub-section(3) (d) (iii) provides that if other conditions are equal, preference shall be given to the applications for Permit from State Transport Undertakings.
Even in a case for grant of Permits for contract Carriage, proviso to sub-section (3) (b) (iv) to Section 74 provides for a similar preferential treatment to the State Transport Undertakings.
Thus, the Act itself provides for preferential treatment to UPSRTC for grant of permits on a non-notified route.
The issue involved herein was considered by the Constitution Bench of the Hon'ble Apex Court in Prbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad & Ors., AIR 1960 SC 801, wherein the Hon'ble Supreme Court while considering the provisions of Act, which contained analogous provisions, held that there are two separate chapters for grant of permit on a notified route, and non-notified routes. Both party apply separately and independently and they do not overlap each other. In a case of grant of permit on a notified route, the authorities have to take into consideration the contents of the Scheme and cannot violate the terms thereof, while the grant of permit on a non-notified route is governed under a completely different head, and as it does not contain any prohibition for grant of Permit to the State Transport Undertaking, and it can be granted to it on a non-notified route also. The Court held as under:
" Now the position here is different. The Government has of course the power to do any business it likes and therefore the business of running stage carriages. We have earlier drawn attention to the change made in cl. (a) of S.42 (3) amendment of 1956. Previously, it was not necessary for the Government to obtain permits under S. 42(1) for buses that it intended to run as stage carriages. Since the amendments, the Government can no longer run transport vehicles for commercial purposes without obtaining permits under S. 42(1). Now the plying of buses as stage carriages is a commercial enterprise and for such buses, therefore, under the sections as they stand, the Government would require permits as any one else. That being so, the sections clearly contemplate that the Government may apply for and obtain permits for its buses run as stage carriages. The rule applied in Nazir Ahmad's case, 63 Ind App 372: (AIR 1936 PC 253 (2) ), does not permit the ordinary meaning of S.42, sub-s. (1) and sub-s. (3), cl. (a) to be cut down because of the provisions of Chapter IV A. The Act lays down two independent sets of provisions in regard to the running of buses by the Government; one under Chapter IV and the other under Chapter IV A. Chapter IV A was intended to give the Government, a special advantage. When the Government chooses to proceed under that chapter, it becomes entitled as a matter of right under S. 68F (1) to the necessary permits. Under Chapter IV the Government does not have any such advantage; it has to compete with other applicants, to secure permits to be able to run its buses. The powers under the two Chapters are therefore different. To such a case the principle of Nazir Ahmad's case 63 Ind App 372: (AIR 1936 PC 253 (2), cannot be applied.
The learned counsel for the petitioner also referred to the maxim expressio unlus est exclusio alterius and contended that since the Act by chapter IV A provided that the Government would be entitled to run buses under a scheme it impliedly prohibited the running of buses by the Government otherwise. It does not seem to us that this maxim carries the matter further. It is a maxim for ascertaining the intention of the legislature. Where the statutory language is plain and the meaning clear, there is no scope for applying the rule. Section 42(3) (a) appears to us to be perfectly plain in its terms. It contemplates that the Government has to apply for permits under S. 42(1) to run buses as a commercial enterprise. That being so, the maxim cannot be resorted to for ascertaining the intention of the legislature and implying a prohibition against the Government applying for permits under Chapter IV."
In Capital Multi-purpose Cooperative Societies Bhopal & Ors. Vs. State of Madhya Pradsh, AIR 1967 SC 1815, the Apex Court reiterated the same view observing that State Transport Undertaking may enter into competition with private operators having obtained permits under Chapter IV of the Act, 1939. Similar view has been reiterated in D.R. Venkatachalam vs. Dy. Transport Commissioner & Ors. AIR 1977 SC 842.
The matter is squarely covered by the said judgment. Under the Act, 1939 there was no prohibition for the UPSRTC to ply its vehicles on a non-notified route, after obtaining the permits."
Hence the view taken in the impugned order that the permits issued to the corporation did not relate to non-notified portion, is absolutely perverse, against the material on record, arbitrary and unreasonable. Merely because the corporation was plying on non-notified route did not mean that the corporation could not be granted permit on a non-notified route. Even otherwise the remedy of the private operators was only by filing an appeal under section 89 or a revision under section 90 of the Act. The permits had been issued to the corporation by the State Transport Authority and hence the question of interpretation of the line of travel could only be decided by the State Transport Authority or the Appellate Tribunal. Thus, the impugned order is absolutely illegal and without jurisdiction.
7. For all the reasons stated above, the writ petition is allowed. The order dated 26.02.2002 (Annexure-5 to the writ petition) is quashed.
8. There is no order as to costs.
01.02.2012 PK