Madhya Pradesh State Road Transport Corporation, Jabalpur Vs The State Transport Appellate Authority, Madhya Pradesh, Gwalior and Others

Singh, J.

The petitioner Madhya Pradesh State Road Transport Corporation by this petition under Article 226 of the Constitution calls into question an order of the State Transport Appellate Authority dated 23rd February 1972 passed in Appeal No. 25 of 1971.

The facts are that the Bundelkhand Motor Transport Company, hereinafter referred to as the Company held a stage carriage permit for the route Chhatarpur to Damoh. This route is an inter-regional route 112 Kilometres of which lie in Rewa region and 48 Kilometres in Jabalpur region. The permit held by the Company was granted by the Regional Transport Authority, Rewa, and was countersigned by the Regional Transport Authority, Jabalpur. The Company applied for extension of its permit from Damoh to Jabalpur via Tendukheda and Patan. The distance between Damoh to Jabalpur is 108 kilometres and this route lies wholly in Jabalpur region. The application for extension was made by the Company to the Regional Transport Authority, Rewa which had granted the original permit. The Regional Transport Authority, Rewa, by its order passed on 10th March 1970 allowed the application for extension subject to the grant of countersignature by the Regional Transport Authority, Jabalpur. Then the Company applied for countersignature to the Regional Transport Authority, Jabalpur, which rejected the application by its order dated 14th December 1970 on the ground that a portion of the route for which extension was sought was a route of complete exclusion under Nationalisation Scheme No. 9 made under Chapter IV-A of the Motor Vehicles Act, 1939. The Company then preferred an appeal to the State Transport Appellate Authority which allowed the appeal by its order dated 23rd February 1972 on tine finding that the part of the route which was covered by the scheme was not a route of complete exclusion and, therefore, extension could not be refused on the ground on which it was refused by the Regional Transport Authority. The Appellate Authority also directed the Regional Transport Authority to countersign the permit. It is this order of the Appellate Authority which is under challenge in this petition.

The learned counsel for the petitioner Corporation has not challenged the order of the Appellate Authority on the ground that the extension of the Company''s permit will contravene any scheme of nationalisation published under Chapter IV-A. The grounds of challenge to the impugned order before us are that the scope for extension was not determined by the Transport Authorities, that the application for extension could not be made to the Regional Transport Authority Rewa, that the order of the Regional Transport Authority, Jabalpur, was not open to appeal, and that the grant of extension of 108 kilometres not being a little change in the original permit the Authorities concerned had no power to grant the extension of such magnitude.

As regards scope, the Regional Transport Authority Rewa in its order granting extension found that there, was need of service on Chhatarpur Jabalpur route and the need could be easily met by extending the Company''s permit. The Regional Transport Authority, Jabalpur also while considering the question of countersignature held that the extension of the permit will be useful as the direct service from Chhatarpur to Jabalpur will cut short the journey time by one day for the passengers going from Chhatarpur to Jabalpur. In face of these findings it cannot be said that the question of scope was not considered by the Transport Authorities. These findings on the question of scope were not challenged before the Appellate Authority and it is not now open to the petitioner to challenge these findings here in this petition. In this connection, the learned counsel for the petitioner referred to Section 47 (3) of the Motor Vehicles Act but that provision has no application to an inter-regional route. It was held in the case of Mohd. Ibrahim, etc. Vs. The State Transport Appellate Tribunal, Madras, etc., that Section 47 (3) of the Act does not apply either to grant or to countersignatures of permits both in the case of interstate and inter-regional routes and that the number of services for interregional or interstate routes will have to be determined by agreement by the relevant authorities in the two States or two regions. The learned counsel faintly urged that the concerned Authorities had not come to any agreement on the question of limit of the number of services on the inter-regional route and the extension could not be granted in the absence of any agreement. But there is no averment in the writ petition that the relevant Authorities had not come to an agreement fixing the number of services on the inter-regional route of Chhatarpur to Jabalpur or that the extension granted was in contravention of any such limit determined by agreement. This question was also not raised before the Transport Authorities. It is, therefore, not open to the petitioner to assail the order of the Appellate Authority on this ground.

Coming to the question of jurisdiction, it is argued by the learned counsel for the petitioner that as the extension sought was for a route which was entirely within Jabalpur region, the application for extension of the permit should have been made u/s 45 to the Regional Transport Authority. Jabalpur. It is also pointed out that even if the route covered by the original permit as also the route for which extension was sought were to be both taken into consideration for deciding as to which authority had jurisdiction for granting the extension, the application should still have been made to the Regional Transport Authority, Jabalpur, for the major portion of the route covered by the permit as extended lay within Jabalpur region. Reliance for this point was placed on the proviso to Section 45 of the Act. It is not disputed that it was the Regional Transport Authority. Rewa, which had granted the original permit. An application for extension of an existing permit is in effect an application to vary the conditions of the permit by inclusion of a new route or area and such an application falls under Sub-section (8) of Section 57. Section 57 lays down the procedure in applying for and granting permits. Sub-section (8) of Section 57 provides that an application to vary the conditions of any permit by the inclusion of any new route shall be treated as an application for grant of a new permit. As a result of the fiction created by this provision, the procedure provided in other sub-sections of Section 57 in applying for and granting permits is made applicable to an application for extension of a permit by the inclusion of a new route. Section 57, however, does not indicate the Authority to which the application contemplated under Sub-section (8) is to be made. It also does not indicate the Authority to which the application for grant of a permit is to be made. It is Section 45 which determines the Regional Transport Authority which has jurisdiction for granting a permit. But the fiction created by Sub-section (8) of Section 57 in treating the application to vary the conditions of a permit as an application for grant of a new permit is, as the context shows, for purposes of the procedure provided in Section 57 and it is not possible to extend the fiction for applying Section 45 to an application to vary the conditions of a permit. The fiction contained in Sub-section (8) of Section 57 itself shows that an application to vary the conditions of a permit by the inclusion of a new route is not an application for grant of a permit and since the fiction does not extend to bring in Section 45, the question of jurisdiction to entertain such an application cannot be determined by recourse to Section 45. Although there is no express provision in the Act indicating as to which Authority will have jurisdiction to entertain an application to vary the conditions of a permit by inclusion of a new route or area, it is logical to hold that the application must be made to the Authority granting the permit. This conclusion is fortified from the fact that u/s 60 of the Act it is the Authority granting the permit which may cancel the permit or may suspend it and which may reduce the number of vehicles, or the route or area covered by the permit. The countersigning Authority can attach to a permit any condition and can vary any condition attached to the permit only at the time of countersigning; (See Section 63 (2).) Further, the countersigning Authority can only revoke and suspend the counter-signature of a permit as provided in Section 63 (3); it has no jurisdiction to cancel or suspend a permit or to reduce the route or area covered by the permit. Section 60 clearly indicates that the jurisdiction over the permit is retained primarily by the Authority granting the permit and not by the countersigning Authority. From this it follows that an application for variation of the conditions of a permit by inclusion of a new route has to be made to the Authority granting the permit. It is no doubt true that if the new route proposed to be included in the permit falls within the jurisdiction of the countersigning Authority, the extension of the permit will be ineffective unless the permit as varied is again countersigned, but the application for extension is in the first instance to be made to the Authority granting the permit. We are, therefore, of opinion that the Regional Transport Authority, Rewa, which granted the original permit, had jurisdiction to grant the extension of the permit.

The next contention of the learned counsel for the petitioner that no appeal was competent against the order of the Regional Transport Authority, Jabalpur, rejecting the application for countersignature is wholly without any substance. Clause (d) of Section 64 (i) provides that any person aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit or by any condition attached to such countersignature has a right of appeal. In the instant case as the application for countersignature was refused by the Regional Transport Authority, Jabalpur the Company was aggrieved from the refusal to countersign the permit as extended and, therefore, an appeal lay to the Appellate Authority under the aforesaid provision. Learned counsel for the petitioner relied upon the case of Hazarilal Gupta Vs. State Transport Appellate Authority, M.P. and Others, ) in support of his contention. But this case is not at all applicable. It was held in that case that rejection of an application to vary the conditions of a permit by inclusion of a new route is not appealable under Clause (b) of Section 64 (1), because that clause only provides for an appeal against the order revoking, suspending or varying the conditions of a permit. It was pointed out in that case that refusal to vary the conditions of a permit is not made appealable under the said clause. But the case cannot be treated to be an authority for the construction of clause (d) of Section 64 (1). As already stated, if the Regional Transport Authority refuses to countersign a permit as extended the order is appealable under clause (d) of Section 64 (1), for refusal to countersign a permit as extended is also a refusal "to countersign a permit" within the meaning of that clause. We are, therefore, of opinion that the appeal was properly entertained by the Appellate Authority.

Then comes the question whether the Regional Transport Authority, Rewa, could grant extension of 108 kilometres. On this point the argument of the learned counsel for the petitioner is that the extension of such a magnitude is not a little change of the original route and that such a variation of the permit is not permissible u/s 57 (8). Reliance for this submission is placed on the case of Abdul Mohi Siddiqui Vs. The State Transport Appellate Authority, Gwalior and Others, ), and other previous cases referred to therein. In Abdul M. Siddiqui''s case and the cases referred to therein this Court proceeded upon the view that variation of the conditions of a permit by inclusion of a new route or area within Section 57 (8) is possible only if the modification introduced is a little change of the original route. If that test is applied, it must necessarily be held that extension of the permit by including a new route of 108 kilometres, not being a little change of the permit, is not a variation within Section 57 (8). We are, however, of opinion that the previous decisions of this Court on the construction of Section 57 (8) cannot be taken to be authoritative after the amendment of the Act by Act 56 of 1969. The amending Act has introduced a proviso in Clause (xxi) of Section 48 (3) which shows that the view taken by this Court that only a little change of the original route can alone be taken to be a permissible variation is erroneous. Section 48 (3) and its Clause (xxi) as amended by the amending Act of 1969 read as follows:--

"48 (3) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a service of stage carriages of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:--

(xxi) that the Regional Transport Authority may, after giving notice of not less than one month,--

(a) vary the conditions of the permit;

(b) attach to the permit further conditions.

Provided that the conditions specified in pursuance of Clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof."

The above provision shows that if a condition in the nature contemplated by it is attached to a permit, the Regional Transport Authority can vary the permit by including a new route of 24 kilometres irrespective of whether the inclusion of 24 kilometres is a little change or a major change of the original route covered by the permit. Suppose the original permit was only for five or ten kilometres, still the Regional Transport Authority can vary the same under the aforesaid provision by extending the permit to an additional route of 24 kilometres. Now the addition of a route of 24 kilometres to a permit which was originally for five or ten kilometres can in no case be considered to be a little change of the original route; still it is a permissible variation under the aforesaid provision. The proviso added by the amending Act of 1969, therefore, clearly shows that variation of a permit by inclusion of a new route is not limited to a little change of the original route. Thus, the proviso clearly indicates that the reasoning adopted in the earlier cases of this Court that only a little change can be called a variation is not sound in law. The word "vary" may have different meanings in different contexts but in its ordinary use as well as in legal phraseology it is quite comprehensive and is not restricted to minor changes (see Words and Phrases Legally Defined. Vol. V p. 276). Section 57 (8) does not retain any limitation as to the extent of variation by the inclusion of a new route or a new area and it will not be proper to restrict the variation to merely minor changes, The test of a little change, which was accepted in the earlier cases, apart from being shown to be erroneous by the amendment introduced in 1969, was somewhat unsatisfactory, for it is not possible to draw the line at which a change ceases to be a little change and becomes a major change not covered by variation. Section 57 (8) expressly contemplates variation of the conditions of any permit "by the inclusion of a new route or routes or a new area." The Section does not put any limit upon the new route that may be included within a permit by varying its conditions and it is not possible to put a limit by construing the word "vary" in a narrow sense. We are of opinion that Abdul Mohi Siddiqui Vs. The State Transport Appellate Authority, Gwalior and Others, ) and other cases referred to therein cannot be followed for construing Section 57 (8), after the amending Act of 1969. It is also contended by the learned counsel for the petitioner that even u/s 57 (8) extension of more than 24 kilometres should not be permitted after the amending Act of 1969. The limit of extension of 24 kilometres has been engrafted in Section 48 (3) (xxi) by the proviso added by the amending Act which we have earlier quoted. We have earlier referred to this proviso to show that the word "vary" cannot be construed to mean merely a little change of the permit. But the limitation of 24 kilometres put by the proviso to Clause (xxi) of Section 48 (3) cannot be bodily lifted and engrafted in Section 57 (8). That limit applies only when there is a condition in the permit in terms of Clause (xxi) of Section 48 (3). It is not disputed that there is no such condition in the permit of the Company; therefore, the limit imposed by the proviso was not applicable to the present case, The proviso in the form now introduced by the amending Act had earlier been introduced in the Madras State by a local amendment. The Madras amendment came up for construction before the Supreme Court in the case of Sri Ram Vilas Service Ltd., Kumbakonam Vs. Raman and Raman Private Ltd. and Another, . It was held in that case that the limit imposed by Clause (xxi) of Section 48 (3), as amended in Madras, was only applicable if there was a condition to that effect contained in the permit and in the absence of a condition in terms of Clause (xxi), the permit could be varied by inclusion of a new route without any limitation u/s 57 (8). Clause (xxi) of Section 48 (3) as amended by the amending Act of 1969 must bear the same construction. In the instant case there is no condition attached to the permit in terms of Clause (xxi). The matter thus being solely governed by Section 57 (8), the Transport Authorities were within their jurisdiction in extending the permit by inclusion of the new route of 108 kilometres.

The petition fails and is dismissed. The petitioner shall pay the costs of the Company, respondent No. 4. Counsel''s fee Rs. 200/-, if certified. The outstanding amount of the security deposit, if any, shall be refunded to the petitioner.