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Judgment
K. Chandru, J.—The writ petitions in W.P.(MD)Nos. 5482 and 7259 of 2010 were filed by the very same Petitioner who is a mini bus
operator, W.P.(MD) No. 5483 of 2010 is filed by the Proprietor of Saradha Transports, a stage carriage operator in Pudukkottai.
The prayer in the first two writ petition is to challenge an order of the first Respondent State Government made in G.O. Ms. No. 271, Home
(Transport) Department, dated 10.3.2010 and seeks for setting aside the same. In the third writ petition, i.e. W.P.(MD) No. 7259 of 2010, the
challenge is to the earlier order, dated 14.12.2009 made in G.O. Ms. No. 1057, Home (Transport) Department, amending Rule 149 of the Tamil
Nadu Motor Vehicle Rules and seeks for a declaration that it is ultravires and unconstitutional.
Heard the arguments of Mr. M. Palani, learned Counsel for the transport operators and Mr. P.S. Raman, learned Advocate General assisted by
Mr. S.C. Herold Singh, learned Government Advocate appearing for the Respondent State.
The first two writ petitions were admitted on 21.4.2010 and an interim stay of notification was granted. Subsequently, on matter being
mentioned by the learned Advocate General, the matter was taken up on 23.4.2010. It was informed that a public hearing by the Principal
Secretary to Government, Home Department was scheduled to take place on 26.4.2010 in Chennai and because of the interim order, it will not be
possible for them to conduct a public hearing. Therefore, this Court modified the order to enable the Government to hold the public hearing. But, in
respect of the other matters, interim stay was directed to be continued. Liberty was also given to take out an application for vacating the interim
order. An application to vacate the interim order was taken out by the State in M.P.(MD)Nos. 3 and 3 of 2010 in both the writ petitions together
with supporting counter affidavit, dated 29.4.2010.
Even when those two matters are pending, the Petitioner in W.P.(MD) No. 5482 of 2010 filed a second writ petition in W.P.(MD) No. 7259
of 2010 seeking to challenge the amendment made to Rule 149 of the Tamil Nadu Motor Vehicles Rules. That writ petition was admitted on
3.6.2010. It was directed to be listed along with the other two writ petitions. Pending the writ petition, only notice was ordered in the stay
application. Accordingly, all the three writ petitions were taken up together and a common order is passed.
It is the case of the Petitioners that on or after 1.7.1990 in the State of Tamil Nadu, no new permit can be granted to any private operators
which may overlap on the notified route. It is also claimed that there are only route approved scheme. As there were large number of areas in
which routes were not nationalized, the State Government in the interest of the Transport Corporation decided to freeze the transport facilities as it
existed on 30.6.1990. In tune with the said policy, the Government had nationalized the transport operations District-wise by introducing area
scheme. In furtherance of the said policy, the Government initially brought area approved scheme for all Districts in the State in the year 1995. The
same was approved and published in the Tamil Nadu Government Gazette, dated 24.5.1995. In terms of the exclusion clause of the scheme, the
following persons were eligible to operate on the area approved scheme which are as follows:
a)The State Transport undertakings of other States.
b)The existing permits of small operators protected under the Tamil Nadu Motor Vehicles (Special Provisions) Act, 1992
c)The permits of the stage carriage operators operating on the inter state routes whose permits are covered by inter state routes.
As a result of the area approved scheme, no route was left non-nationalized in the State. During the year 1997, the Government had decided to
introduce mini bus services to serve the unnerved rural areas where no stage carriage was provided to cater to the needs of the rural people
residing in remote areas. In furtherance of the said policy, the area approved scheme 1995 was modified so as to enable the transport authorities
to grant mini bus permit. Under the said modified area approved scheme, the power was vested on the Government regarding prescription of the
distance for mini bus operation from time to time. Based upon such administrative instruction, the transport authority can exercise their power for
the grant of mini bus permit. Under the said scheme, the power was only vested with the State Government to modify the distance by which the
mini bus permit may be granted. This enable the State Government to modify the approved scheme from time to time.
In furtherance of the said power, the Government had issued an executive order on 7.10.1997 prescribing distance for mini bus operation as 16
Kms to serve the unnerved rural area, out of which 1 Km may overlap in the served sector. Subsequently, the Government on 30.7.1998 had
directed the transport authority to grant mini bus permits for a distance of 16 Kms to serve the unnerved rural area. However, it was stated that
while granting permit, the route can overlap 4 Kms in the served sector. Thereafter, on 28.10.1998, the Government had issued an another order
increasing the distance of mini bus permit route from 16 Kms to 20 Kms. But the overlap was confined only to 4 Kms. in the served sector. This
modified area approved scheme, dated 1.9.1997, the executive orders of the State Government, dated 7.10.1997, 30.7.1998 and 28.10.1998
came to be challenged before this Court in a batch of writ petitions starting from and batch cases in N. Velumani and Ors. v. State of Tamil Nadu
and Ors. W.P. No. 12476 of 1998 By a common order, dated 30.1.1999, this Court found that Section 6(4) of the Tamil Nadu Act, 41/1992
does not bar the Government from modifying the scheme. But, with reference to the Government''s power to issue directions authorizing the
Regional Transport Authorities to grant permit to ply the mini bus overlapping the approved scheme routes, it was held that such reservation of
power under G.O. Ms. Nos. 1254 and 1256, Home Department, dated 1.9.1997 was ultravires of Section 102 of the Motor Vehicles Act. In
paragraph 41, it was observed as follows:
41.I find some force in the contention of the learned Counsel for the Petitioner. As held by the Andhra Pradesh High Court in SPSRTC case, the
proposal for modification of the approved scheme itself is a scheme. When once the scheme has been amended after following the procedure u/s
102 of the Act, the amended scheme will become the scheme. If any further modification is to be made to the scheme, then it goes without saying
that the procedure laid down u/s 102 has to be scrupulously followed. When that be the law, it is not open to the Government to reserve the
power to issue administrative instructions for future in order to further modify or amend the amended scheme to vary the distance of the unnerved
rural area. Hence the reservation of the power under G.O. Ms. No. 1254 and 1256 dated 1.9.97 relied on by the learned Advocate General
cannot hold good and the same is ultravires of the statutory provision of Section 102 of the Motor Vehicles Act.
Consequent upon the said findings, the other orders were also set aside. It was also found that the Government can vary the distance in respect of
unnerved rural area, but has no power to vary the overlap distance in the approved scheme route.
After the order was passed by this Court, the State Government brought another modified area approved scheme on 17.11.1999 which was
published in the Government Gazette. By the said scheme, mini bus permits may be granted for a maximum distance of 20 Kms out of which 4
Kms may be granted in the served sector. It was also stated that maximum of 250 minim buses can be operated in each District. The scheme also
contains an explanation to define as to what is meant by the term ""served sector"". The modified area approved scheme was again challenged in writ
petitions being and batch cases in V. Senthil v. State of Tamil Nadu and Anr. W.P. Nos. 19067 to 19069 of 1999 They were dismissed by a
common order dated 28.7.2000. In that batch of cases, this Court had framed 15 issues which were raised before the court and it is necessary to
refer to some of them.
With reference to an objection as to whether the Government has power to modify the approved scheme and that too to advance the cause of
mini bus operators and the scope of power under Chapter VI of the Motor Vehicles Act, they were made as issue Nos. 2 and 3. The court held
that if relaxation is made in favour of rural transporters to provide under the original scheme, the aggrieved party could not have successfully
challenged the same. It was held in paragraphs 105 and 106 of the said order as follows:
The power to modify is not at all circumscribed or conditioned by any other consideration or statutory provision. But at any rate, the power
to modify, which modification has been undertaken by the impugned notification, by relaxing the exclusion clause, the object of nationalization or
for that matter the object of Chapter VI has not been defeated and the hue and cry made by the Petitioners is nothing but a misplaced action
initiated to secure their personal benefits.
Section 102 of the Act provides for modification as well as cancellation of an approved scheme, if the State Government considers it
necessary in the public interest so to do. By the impugned notification, modification of the exclusion clause so as to permit mini bus operation in the
approved area scheme, the purpose or object of Chapter VI had not been lost nor it has been defeated. Partial exclusion in a scheme could always
be enlarged in public interest or by introducing necessary modification to the approved scheme. Apart from Section 102, Section 21 of the General
Clauses Act will apply and it is applicable in interpreting the word ""modify"" or ""modification"" used in Section 102 of the Motor Vehicles Act in the
absence of any contrary intention appearing in the Act.
For the contentions raised as issue Nos. 8 and 9 regarding the scope of Section 6(4) of the Tamil Nadu Act, 41/92 and whether there was any
bar for grant of permit on notified area or route and whether modification of area approved scheme was sufficient to enable the transport
authorities to grant permit to ply the mini bus in any part of the notified area by the private operators, the court answered in paragraph 157, which
reads as follows:
The provisions of Chapter VI of the Central Act remains intact and the State Act 41 of 1992 in no manner scuttles or restricts or interfere
with the operation of the said Chapter, nor the provisions of Tamilnadu Act 41 of 1992 has excluded the operation of either Chapter v. or VI to
the State of Tamilnadu, if by the terms of the approved scheme a permit could be granted, such grant is not prohibited by Section 6(4) of the
Tamilnadu Act 41 of 1992. Section 6(4) has to be read in the context of the said enactment as a whole and the contention advanced by Mr. Palani
that Section 6(4) will have overriding effect on all enactments including Chapter v. or VI of the Central Act, 1988 and will be operative forever
cannot be sustained. Such a contention, if accepted it would render the very provisions of the Tamil Nadu Act 41/92 ultravires. In the light of the
judgment of the Apex Court as well as while following the view taken by S. Jagadeesan, J, this Court also answers these two contentions against
the writ Petitioners and in favour of the Respondents.
Regarding the contentions in Serial Nos. 10,11 and 12, where the terms of the scheme allows future grant of permit on the area approved
scheme, whether the amended scheme enables the mini bus applicants to carve out and pick and choose the routes of their choice and whether it is
impermissible in law, in paragraph 167, the court had observed as follows:
Explanation-II relates to and explains the expression ""overlapping distance"" and there is no contradiction between the unnerved rural area and
the EXPLANATION-II. EXPLANATION-II makes it clear that ""overlapping distance"" includes urban areas also, but it will not include unnerved
rural area. The contentions raised by the learned Counsel for the Petitioner though attractive cannot be sustained and they fail.
As against the common order, it is claimed that some writ appeals are pending starting in W.A. No. 1286 of 2000 and batch. Subsequently,
the State Government by the modified area approved scheme, dated 17.11.1999 enabling the Government to transfer certain permits of transport
corporation to private operators. A draft proposal was published in the Government Gazette, dated 12.11.2002. That was also challenged before
this Court in a batch of writ petitions starting from W.P. No. 43190 of 2003. Pending that proposal, a further proposal was made to modify the
area approved scheme under which the Government decided to increase the route length of mini bus from 20 to 25 kms and the served sector
from 4 to 8 Kms. This proposal was published in the Government Gazette on 1.6.2005. Once again, the said move was opposed in a batch of writ
petitions starting from W.P. No. 22019 of 2005. While admitting the writ petitions, this Court directed a public hearing to go on and the decision
should not be implemented until further orders. This batch of writ petitions came to be posted before a division bench. However, the learned
Advocate General appearing for the State had informed the court that the Government did not wish to go ahead with the orders in G.O. Ms. Nos.
422, etc, Home Department, dated 1.6.2005. The division bench of this Court on 12.12.2006 had recorded the following statement and disposed
of the batch of writ petitions, which reads as follows:
It is submitted by Mr. R. Viduthalai, learned Advocate General appearing on behalf of the Government that the Government has taken a policy
decision as per the Act and do not go on with the Government Orders in G.O. Ms. Nos. 422, 423, 426 and 439, Home (Transport-III)
Department, dated 1.6.2005. 2. Recording the submission of the learned Advocate General, the writ petitions are dismissed. Consequently,
connected WPM Ps are also dismissed. No costs. However, enabling the Government to take a policy decision as per the provisions of the Act.
After the disposal of those writ petitions, the Government came forward to issue the impugned government Order in G.O. Ms. No. 271,
Home (Transport) Department dated 10.3.2010. The same was also published in the Tamil Nadu Government Gazette on the same day, which
had become the subject mater of the present writ petitions.
It is now contended by the Petitioners in these writ petitions that the said order is arbitrary and violative of Article 14 of the Constitution of
India. The Government cannot reserve its power to issue guidelines to the authorities regarding prescription of the route length for the operation of
the mini bus services. Under the provision of the Motor Vehicles Act, 1988, the Government has no power to issue any such guidelines or
directions by way of an administrative order to the transport authorities which will be in flagrant violation of law laid down by the Supreme Court
and this Court and reserving power to itself to issue directions or guidelines from time to time to the transport authorities regarding grant of mini bus
permit was also illegal and without jurisdiction. It is opposed to Section 102 of the Motor Vehicles Act. It is also contrary to the earlier judgment
of this Court referred to above. It is further claimed that Section 102 is a self contained code. u/s 99 of the Motor Vehicles Act, the first
Respondent should prescribe minimum and maximum number of permits. In this State, there are more than one transport corporation and each
Corporation must be made known the number of services prescribed for their operations in the approved scheme. Since such prescription is not
contemplated for each corporation, the impugned notification is arbitrary and hit by Sections 99, 100 and 102 of the Motor Vehicles Act. The
impugned order inasmuch as it confers power on the State Transport authorities to delegate its power to the Regional Transport Authorities for
formulating the routes, the same is in violation of Section 68(3)(ca) of the Motor Vehicles Act. When the State had made a solemn statement
before this Court that they wanted to withdraw the proposal, it is unfair for them to come up with the same proposal by a new order. u/s 68(3)
(ca), a route can be formulated only by the Government and after formulating such route, the transport authorities have to exercise its power for
grant of permits. Therefore, empowering the State Transport Authorities to formulate the route is contrary to the Act.
Realising that before the issuance of the impugned order, the State Government had issued G.O. Ms. No. 1057, Home (Transport)
Department, dated 14.12.2009 amending Rule 149 and that may stand in the way of the present contentions, the first Petitioner filed the third writ
petition in W.P.(MD) No. 7259 of 2010 challenging the amendment made to the Rule. The present amendment to Rule 149 reads as follows:
In the said Rules, in Rule 149, for the expression ""delegate to the Secretary to Transport Commissioner, Secretaries to State Transport Authority
and Assistant Secretaries"", the expression ""delegate to the Regional Transport Authority, Secretary to Transport Commissioner, Secretaries to
State Transport Authority and Assistant Secretaries"" shall be substituted.
The ground raised by the Petitioner was that such an amendment is contrary to the provisions of the Act. Both State Transport Authority and
the Regional Transport Authority are statutory authorities and are exercising an independent power in their respective sphere and area of
operation. The present permit is an excessive delegation and such a delegation cannot be made in exercise of rule making power.
Opposing this contention, the Respondent State submitted that the Petitioners being mini bus operators did not send any representation when a
draft notification was published in the Government Gazette. The same was also published in the newspaper as required u/s 102 of the Motor
Vehicles Act. Since from the date of publication, i.e. on 9.4.2010 within 30 days, they have not sent any representation, their writ petitions are not
maintainable. It was further claimed that Section 99 of the Motor Vehicles Act empowers the State Government to formulate a proposal for
purpose of providing efficiency, adequate, economical and properly coordinated road transport services. It also empowers the State Government
to specify in the proposal the road transport services in general or in particular class of service in relation to any area or route or portion thereof
should be run and operated b the State Transport Undertakings whether to the exclusion, complete or partial of other persons or otherwise.
It is pursuant to this provision, the Government of Tamil Nadu had notified the District-wise area scheme of nationalization of bus transport
services for each district separately on 24.5.1995. The scheme was upheld. As per the terms of exclusion clause, persons are entitled to operate
any route lying within the area covered by the scheme which have already listed elsewhere. Considering the need to provide adequate transport
facilities to the people living in the rural area where no bus facilities have been provided, the Government in the year 1997 decided to permit the
operators to operate mini buses in those areas. In order to enable the RTA to grant permit to private operators for operating mini buses, approved
modified area scheme 1997 was published. In the exclusion clause, it was stated that permit of mini bus operators operating on the routes lying in
the unnerved rural areas up to such a distance, as may be ordered by the Government from time to time in this regard.
When the orders were issued in G.O. Ms. No. 995, Home (Transport) Dated, 30.7.1998 this Court by judgment dated 301.1999 had set
aside those orders. As against the said judgment, the State had preferred appeals in W.A. Nos. 168 to 173 of 1999. During the tendency of those
appeals, this Court by an interim order, dated 15.2.1999 and 11.3.1999 had directed the operators who have been granted permits by the RT As
and who are in possession of vehicles to operate. With a view to benefit the rural people and taking note of the interim orders, the Government had
published an another scheme by a draft notification, dated 12.7.1999. The notification was approved on 7.11.1999 and published in the Gazette
vide G.O. Ms. Nos. 1523 to 1549, Home (Transport) Department, dated 17.11.1999. Pending disposal of the earlier writ appeals, the
Government had also sought for a direction from this Court for permitting them to grant new mini bus permits in accordance with the approved
modified area scheme, dated 17.11.1999. However, by an order, dated 5.2.1999, the division bench dismissed all the writ appeals as having
become in fructuous.
In the approved district-wise area scheme, 1995, an exclusion clause was added to mean that the permits of mini bus operators to operate in
the rural areas of the District where no stage carriage services are provided up to a route length not exceeding 20 Kms with an overlapping
distance not exceeding 4 Kms on the routs where stage carriages are operating. In the said scheme, the term ""rural area"" as well as term ""overlap
distance"" were also defined. In respect of Nilgiris District, the scheme also permits the RT As to grant mini bus permit for a route length up to 24
Kms with an overlapping distance not exceeding 8 Kms on routes where stage carriages are operating. By introduction of 1999 Scheme and the
issuance of mini bus permits in the State, the people of rural areas have been benefited. The challenge to those modified scheme was repelled by
this Court though writ appeals are pending against the same. Subsequently, the Government had issued G.O. Ms. Nos. 1052 to 1079, Home
(Transport) Department, dated 11.11.2002 and draft notification to further modify the approved modified area scheme 1999 so as to enable the
transfer of certain permits of State Transport Undertakings in the name of private operators and that was also challenged before this Court. During
the tendency of writ petitions against the draft scheme 2002, the Government had issued an another draft notification in G.O. Ms. Nos. 411 to
439, Home (Transport) Department, dated 1.6.2005 to further modify the 1999 scheme, thereby increasing the route length from 20 kms to 25
Kms for mini bus permit and allowed up to 8 Kms overlapping where stage carriage was operating and compulsory plying of 5 Kms on unnerved
routes. The modified scheme was also challenged before this Court.
However, this Court by recording the statement of the learned Advocate General that the Government had taken a policy decision not to
pursue the draft notification and with a view to enable the Government to take a fresh policy decision, the entire batch came to be dismissed. It
was also stated that the Government took a policy decision by evolving comprehensive scheme of permitting private operators to operate mini
buses. Therefore, as per the present policy and as per the power exercisable u/s 68(3)(ca) by the RT As and the power delegated by the State
Transport Authorities in terms of Section 68(5), as and when necessary without any restriction regarding rural / urban areas and as per the
guidelines issued by the Government from time to time to provide direct bus facilities to the people living in the village / hamlet / habitation that have
a population of 100 or more families so as to reach the nearest bus stand of nearest town / city where there are adequate bus services provided to
go to various other places and subject to the condition that the routes must be viable and not more than 30% of the route length covered by the
permit should overlap with any existing served routes. It is to implement the said policy, the impugned notification came to be issued.
It was also claimed that in response to the draft notification, objections were received from various State Transport Undertakings, Trade
unions, members of private bus owners association and members of mini bus owners association. By virtue of the interim orders, they were also
heard by the Respondent on 26.4.2010. Even before any decision could be taken, the Petitioners have rushed to this Court and stalled the final
notification being issued. It is stated that many of the contentions raised by the Petitioners have been rejected by this Court at an early point of time
. Section 99 of the Motor Vehicles Act enables the State Government to formulate a scheme in any area, route or part thereof. Further, already as
held by this Court vide its judgment, dated 30.1.1999, when once the scheme has been amended after following procedures, u/s 102 of the Motor
Vehicles Act, amended scheme will become final. The only requirement is the procedure u/s 102 will have to be followed for further modification.
Therefore, the modified scheme can also be further modified. The contentions raised relating to Section 68(3)(ca) and there cannot be any
delegation of power are also unwarranted as it is based upon misconception. The routes can only be formulated by the Government alone. After
formulation of the route alone, the RTA can exercise its power. Therefore, even the State Transport Authority has no power to formulate the route
or delegate its power to RTA.
With reference to grant of direction, Section 67(1) of the Motor Vehicles Act enables the Government to grant direction by way of notification
both to ST As and RT As with regard to the advantages offered to the public, trade and industry by the development of motor transport and
desirability of preventing uneconomic competition among holders of permit. If the operators are aggrieved by any grant of permit and such a grant
is in contravention of the provisions of the Act, it can always be challenged by way of judicial review. As of now, the draft notification is receiving
attention of the Government.
In fact, in the case of the Petitioner in W.P.(MD) No. 5483 of 2010 (K. Viswanathan), he himself had sent a representation, dated 6.4.2010
to the State Government. Even before his objection could be considered, he had also filed the present writ petition which is clearly illegal. Though
this fact was referred to in paragraph 16 of the affidavit, he had not stated as to why he had filed the present writ petition even before a decision
could be taken by the Government.
In the counter affidavit filed in W.P.(MD) No. 7259 of 2010, dated 18.6.2010, it was claimed that u/s 68(5) of the Act, the State Transport
Authorities can delegate such of their power to such authorities or person as may be prescribed. The proposal to amend the rule was published in
the form of draft and n objection was received from the public. Hence the final notification was issued.
In the light of the rival pleadings, the contentions raised by the Petitioners will have to be seen.
Mr. M. Palani, learned Counsel for the Petitioners referred to the judgment of the Supreme Court in B. Rajagopala Naidu Vs. State Transport
Appellate Tribunal and Others, and contended that u/s 43A of the Motor Vehicles Act, the Government is empowered to issue directions on
administrative character and nothing more. By issuance of such direction, the matters which have been entrusted to the Tribunal constituted under
the Act, are required to be decided in quasi judicial manner cannot be thwarted.
He further relied upon a judgment of the Supreme Court in Raman and Raman Ltd. Vs. The State of Madras and Others, for contending that
u/s 47 of the Motor Vehicles Act, it is the Regional Transport Authority who should decide whether to grant or refuse carriage permit having
regard to the interest of public generally and the Government cannot give any direction in such matters.
In S. Kannan and Others Vs. Secretary, Karnataka State Road Transport Authority, the Supreme Court had observed in paragraph 15 that
though Section 44(3), a State Transport Authority can perform the duties of a Regional Transport Authority, but the term Regional Transport
Authority found u/s 62 will not comprehend the term State Transport Authority. It cannot be possible to hold that if power is conferred on the
lower authority, that power can always be exercised by the higher authority in the hierarchy in relation to the lower authority unless there is express
provision in the statute which provides that the State Transport Authority can always and without any fetter enjoy the power of the RTA. It was
further held that in the absence of such provision, it was difficult to read merely on the basis of vertical hierarchy wherever the lower authority is
mentioned in the statute, the higher authority can also be included. Hence, he submitted that by the impugned order enabling the STA to perform
such duties is contrary to the provisions of the Act.
The learned Counsel further submitted that in Zamindara Motor Transport Cooperative Society v. R.T.A., Bikaner and other reported in 1999
AIHC 821 the Rajasthan High Court held that the statutory authority cannot grant permit in contravention of the terms of the scheme. Even the
court cannot issue a direction to the transport authorities either to refrain from enforcing the law or to act contrary to law. If the schedule to the
agreement provides for number of trips and number of permits, the transport authority by no mean can grant permit in violation of the scheme.
In APSRTC, Musheerabad, Hyderabad Vs. State Transport Appellate Tribunal, Hyderabad and others, the Andhra Pradesh High Court held
that none of the authorities specified u/s 68 nor any citizen can carve out any route. The power to formulate a route for plying a stage carriage is
exclusively reserved in favour of the State Government only. Therefore, while Section 99 of the M.V. Act create a monopoly in favour of the State
owned Corporation in terms of the scheme and such monopoly can be provided on the routes provided u/s 68(3)(ca). Likewise by virtue of
Section 98, the routes covered by the scheme has been given overriding effect in the sense that private operators cannot complain of the exclusion
of their rights either total or partial. The route contemplated u/s 68(3)(ca) is a route that is different from the route contemplated by the scheme
formulated u/s 99 of the Act. Therefore, it was held that what is prohibited cannot be achieved by circumventing the scheme and by circumventing
the law and by camouflaging the route.
33.A division bench of the Andhra Pradesh High Court in N. Swarnalatha Vs. Managing Director, APSRTC, Hyderabad and others, while dealing
with Section 68(3)(ca) held that such carriage permit can be granted only by respective authorities and the route formulated by the State
Government.
Subsequently, a learned Judge of the Andhra Pradesh High Court vide his judgment in T. Penchala Naidu Vs. State Transport Appellate
Tribunal and Others, referred to the Swarnalatha''s case of the division bench (cited supra) and the amendment made to the M.V. Act and
interpreting Section 68(3)(ca), in paragraph 9, he held as follows:
9.... It is not denied before me that as per Section 68(3)(ca) of the Act as amended by the motor Vehicles (Amendment) Act, 1994 (Act No. 54
of 1994), the power to formulate the routes for plying such carriages vests with the State Government. Be it noted, Section 68(1) of the Act deals
with transport authorities who exercise and discharge powers to be exercised by the State Transport Authority (STA) or every Regional Transport
Authority. Prior to amendment, STA and RTA were competent to co-ordinate and regulate the activities and policies of the RTA and settle all
disputes and decide all matters in which difference of opinion arises between two authorities. After amendment, the power to formulate the routes
vested absolutely in the Government and, therefore, the STA or RTA or the Transport Commissioner does not have any power to formulate the
routes for plying stage carriages.
The learned Counsel further referred to a judgment of the Supreme Court in A.P.S.R.T.C. Vs. Reg. Transport Authority, Ananthapur and
Another, wherein the Supreme Court said that only the Government can formulate the route.
The learned Counsel further referred to a judgment of the Andhra Pradesh High Court in Vijayanarasimha Reddy Vs. Joint Transport
Commissioner and Secretary, State Transport Authority, Himayatnagar, Hyderabad, for contending that a draft scheme neither considered nor
approved nor rejected by the State Government will be wholly contrary to the spirit of law of Chapter IV-A enacted by the Parliament. That
Chapter implies a duty on the part of the State Government to speedily consider and either to approve or reject the scheme submitted by the State
Transport in the interest of the traveling public. Merely using the interest of traveling public, one cannot circumvent the spirit behind the
nationalization of the road transport. The theory of giving temporary permit will destroy the statutory priority created u/s 68-F.
The counsel also referred to the judgment of the Madhya Pradesh High Court in M.P. State Road Transport Corporation Vs. State Transport
Appellate Tribunal, Gwalior and others, for contending that the words ""State Government"" inserted by the amendment Act 1994 only mean the
authority conferred with the powers to exercise the powers of the State Government and it does not mean any other authority.
He also referred to a judgment of a division bench judgment of the Bombay High Court in Parbhani Transport Cooperative Society Ltd. v.
G.V. Bedekar, Commissioner and Ors. reported in AIR 1960 Bombay 278 wherein the Bombay High Court held that Sections 47 and 68-C of
the M.V. Act apply to different circumstances and not to identical situation. Under 68-C, it contemplates preparation of scheme by the
Corporation and it is only when such a scheme is decided, then the provision of the section will apply. When the Corporation does not prepare the
scheme, then Section 68-C cannot be availed.
Thereafter, reliance was placed upon a judgment of the Supreme Court in C.P. Sikh Regular Motor Service and Others Vs. The State of
Maharashtra and Others, for contending that in the context of Section 68-C, an area does not mean an area specified by the State Government in
a notification in the Gazette in accordance with the substantive part of the definition clause. A scheme u/s 68-C can be framed only in relation to an
area or route or part thereof. It cannot be presumed by the use of the term ""area"", ""route"" or part thereof in the same section. There was no
distinction between the area and the route. Therefore, it was held that an area simplicities is certainly not a route. Its potentiality to become a route
would not make it a route. A route is an area plus something more. In that context, in the said judgment, a reference was made to the earlier
judgment in Dosa Satyanarayanamurty etc. Vs. The Andhra Pradesh State Road Transport Corporation, .
Therefore, he pleaded that the present attempt by the Government to overcome the statutory provision cannot be accepted by this Court. The
Court must strike down the impugned notice issued by the State government. The State Government''s delegating the power to the STA is
unwarranted. The delegation of power made under Rule 149 was an excessive delegation and made with a view to get over the earlier rulings of
the court in that regard.
On the question of maintainability of the writ petitions against the proposed notice calling for objections, the learned Counsel contended that
such a writ petition is maintainable. He referred to a judgment of a Supreme Court in Siemens Ltd. v. State of Maharashtra and Ors. reported in
2006 (12) SCC 33 and referred to the following passage found in paragraph 9, which reads as follows:
Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause
unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v.
Brahm Datt Sharma Special Director v. Mohd. Ghulam Ghouse and Union of India v. Kunisetty Satyanarayana but the question herein has to be
considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the
court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. See K.I. Shephard v.
Union of India. It is evident in the instant case that the Respondent has clearly made up its mind It explicitly said so both in the counter-affidavit as
also in its purported show-cause notice.
Since the State Government has made up its mind, the writ petitions should not be thrown out on the ground that they were attacking a show cause
notice or that the writ petitions were premature.
Per contra, Mr. P.S. Raman, the learned Advocate General submitted that the Petitioners have no locus standi to question the impugned
scheme. On one case having sent an objection, they cannot come to this Court to maintain the writ petition at the provisional stage. He further
submitted that the Government''s intention in formulating a policy to provide buses even to hamlets where there are 100 families living is a laudable
one. It was made only in the interest of the general public. The Petitioners cannot put fork into the realm of the State Government. In the earlier
rounds of litigation, the Petitioners had miserably failed to substantiate their contentions. This Court had upheld the power of the State Government
to operate mini buses by issuing permits. The objection that there cannot be delegation and it has to be made only u/s 102 is also not valid.
Because the power has been delegated to other authorities by a valid statutory delegation. There cannot be any excessive delegation in that regard.
It is well within the realm of the State Government to provide such powers to the authorities to consider the nature of the scheme. The policy to
grant permit has been liberalized. Any one can apply in the available route. When the policy is to provide transport in public interest to large
number of people, the present attempt by the Petitioners cannot be welcomed.
It must be noted that each one of the arguments made by the Petitioner were squarely rejected by this Court vide its judgment in v. Senthil''s
case (cited supra) in W.P. No. 19067 of 1999, dated 28.7.2000. He further submitted that in N. Velumani''s case (cited supra), the court only
held that reservation of power in G.O. Ms. Nos. 1254 and 1256, dated 1.9.1997 was ultravires and the procedure has to be followed. In fact
subsequent to the judgment, the rule has been amended providing delegation and the action of the State cannot be questioned in this regard.
He further submitted that when the State had made a statement before the division bench on 12.12.2006, it only brought to the notice of the
court that the Government did not want to pursue the earlier G.O., dated 1.6.2005. That does not mean the Government has decided not to take
any fresh policy or denuded itself of its power under the Motor Vehicles Act to contemplate a new policy. The learned Advocate General further
stated that pursuant to the provisional notice issued, objections have been received. After an interim order made by this Court, vacating the
injunction with reference to conduct of public hearing was also made. The Petitioners by filing such writ petitions have forestalled any decision
being taken by the Government without any legal justification. The Government is not expected to take a decision contrary to law or against public
interest.
In the light of the rival contentions, it has to be seen whether there is any substance in the case of the Petitioners. It must be noted that in
Senthil''s case (cited supra), the points raised by the Petitioners have been answered (as set out above) and that order having become final, there
cannot be any further argument on this issue. The only possible objection regarding the delegation has also been made clear by the amendment
made to Rule 149 of the Tamil Nadu Motor Vehicles Rules.
This Court do not find any substance in the contentions raised by the counsel for the Petitioners. Whether one likes it or not, the operation of
mini buses have come to stay. It is the intention of the Government to further extend it to remote hamlets, so that a large number of traveling public
will be benefited. Therefore, one cannot put spokes in the wheel and wreck the scheme made by the Respondent State. Further, there are no
excessive delegation in amending the Rule 149 and it is well within the power of the State to confer such a power. It must also be noted that none
of the State Transport Undertakings are before this Court. It is not disclosed as to whose interests the Petitioners are canvassing in these writ
petitions.
In the light of the above, all the three writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected
miscellaneous petitions stand closed.