S.R. Singh, J.@mdashThe question of law that looms for consideration in the bunch of writ petitions aforestated is; whether regular stage carriage permit granted and issued under the provisions of the Motor Vehicles Act, 1939 (In short the ''old Act'') can be renewed under the provisions of the Motor Vehicles Act, 1988 (In short the ''new Act'') and since the material; facts giving rise to these petitions are quintessentially the same, these petitions have been lumped together for decision by a common judgment with the consent of the counsel appearing for the parties.
2. With a view to appreciating the controversy, it would be worthwhile to delineate in brief, the facts of Writ Petition No. 26349 of 1995 which is anointed for convenience, as the leading case. The Petitioner, therein, was granted regular stage carriage permit (Permit No. 602-A) in the year 1954 for a route known as Somna-Khair-Gomat Morth-Nau Jheel. A part of the said route from Khair to Gomat Morh, as would be evident from the sketch map (Annexure 1 to the writ petition) overlapped the nationalised route known as Aligarh-Khair-Tappal. The period for which the Petitioner�s permit aforestated was last renewed under the old Act expired after 1.7.1989, i.e., alter the enforcement of the new Act but it was renewed, as alleged in para 2 of the suppl. affidavit, on 15th July, 1994. In the meantime, the third Respondent, Sri Munendra Pratap Singh had moved an application on 21.7.1986 for grant of a new permit under the old Act. The application was rejected by the Regional Transport Authority (for short the Authority) vide order dated 19.11.1990 with liberty to apply afresh for grant of permit under the new Act. The order dated 19.11.1990 was, however, set aside by the State Transport Appellate Tribunal (in short the Tribunal'') and the application for grant of permit allowed for the route in question vide order dated 27.7.1992. The actual permit, however, could not be issued because of interim stay orders dated 22.12.1989 and 6.2.1992 passed in Writ Petition Nos. 24824 of 1989 and 607/(LB)/92 respectively. These petitions have since been dismissed and stay orders discharged vide judgments and orders dated 26.3.1993 and 21.10.94 respectively. The third Respondent, therefore, approached the ''authority'' for issuance of permit pursuant to the Tribunal''s order dated 27.7.92. The Secretary to the Authority vide his order dated 16.11.94 directed issuance of permit on the basis of the Tribunal''s order dated 27.7.92. The Petitioner, Satya Deo preferred a revision which the Tribunal dismissed, vide order dated 2.8.1995, holding that it was not maintainable on the grounds firstly, that the revisionist was not an existing operator under a valid permit and, therefore, could not be characterised as an aggrieved person if the permit was issued to another person and, secondly, that the issue of permit by the Secretary to the Authority pursuant to the Tribunal''s order dated 27.7.92 was a clerical act" and "does not amount to an order of R.T.A." Aggrieved, the Petitioner, Satya Deo has approached this Court for a writ of certiorari quashing the orders dated 16.11.94 and 28.8.1995 passed by the Secretary to the Authority and the Tribunal respectively. Similarly, orders passed in similar circumstances are under challenge in the other connected writ petitions.
3. Shorn of unnecessary details, the facts are that regular stage carriage permits were granted and issued in favour of the petitioner for different routes under the old Act and the permits were renewed under the said Act from time to time. The period for which the permits were last renewed under the old Act, expired after the enforcement of the new Act but the permit-holders continued to operate their vehicles even after the 1.7.1989 by virtue of Section 217(2)(b) of the new Act which provides that notwithstanding the repeal of the old Act by new Act, any permit issued or granted under the repealed enactment would continue to have effect even after the commencement of the new Act under the same conditions and for the same period. After expiration of the period, however, instead of applying for grant of new permits under the new Act, the permit-holders applied, after the enforcement of new Act, for renewal of permits granted and renewed from time to time under the old Act. It transpires from the record that the applications for renewal of permits though moved after the enforcement of the new Act, were allowed by the concerned Regional Transport Authority and the periods for which the permits were so revalidated are yet to expire.
4. Now coming to the question raised in these petitions, it may be worthwhile to quote the pronouncement of the Supreme Court in
With the expiry of the period given in the permit under the repealed Act, by necessary implication, the operator has to make fresh application in the prescribed manner to the concerned Regional Transport Authority or State Transport Authority and seek grant u/s 72. The grant of renewal is no more than a fresh permit to operate transport service for a fresh period mentioned in the renewed permit. Therefore, the operation of the permit issued u/s 58 of the repealed Act IV of 1939 is terminus with the expiry of the period of grant and the operation of the Act IV of 1939 ceases to have effect from that date. Any right to run the permit, therefore, must be under permit granted under the Act as per its provisions. Harmonious construction of the relevant provisions would lead to the above conclusions lest any other constructions would fly in the face of the express provisions of the Act. By necessary implication of Section 217(2)(b), the right to renewal under the Act IV of 1939 stands repealed with expiry of the period of grant of permit made under the repealed Act. Since the application was not made far fresh grant under the Act, rejection of the renewal application under Act N of 1939 or under the Act is perfectly legal
The Supreme Court in the above case expressly ruled that the condition precedent to renewal of the permit u/s 72 of the new Act is "that the initial grant of permit must be under the Act".
5. Section 81 of the new Act provides for duration of renewal of permit. The terms and conditions subject to which the permit can be granted under the new Act are altogether new not comprehended by Section 58 of the old Act.
6. According to Section 217(2)(b) of the new Act, continuance of any certificate of fitness or registration or licence or permit Issued or granted under the repealed enactment "under the same conditions and for the same period" remained unaffected by the repeal of the old Act. Right to preferential treatment in the matter of grant of permit by way of renewal as recognised by Section 58, if already acquired under the old Act, may, as held in Yashwant Singh''s case (supra), be enforced under the new Act for repeal of enactment, as provided by Section G(c) of the General Clauses Act, does not affect any right, privilege, obligation or liability acquired or accrued or incurred under any enactment so repealed."
7. The question that emerges for consideration is whether any right to preferential treatment in the matter of grant of permit by renewal as recognised under the old Act was acquired by or accrued in favour of the petitioner on or before the commencement of the new Act. In my opinion, the right to preferential treatment in the matter of grant of permit by way of renewal as recognised by the proviso to Clause (b) of Section 58(2) of the old Act could have accrued had an application for renewal of permit been made under the old Act. Guru Charan Singh''s case (supra) was a case" where the permit-holder had already applied for renewal and his application had been notified" and "claim for renewal set in motion under the old Act", that is to say, application for renewal was pending on 1.7.1989, the date with effect from which the new Act came into force.
8. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere "hope or expeditation of, or liberty to apply for acquiring the right [See Director of Public Works v. HOPO Sang (1961) 2 AH ER 721 . A right to apply for renewal and get preferential treatment u/s 58 of the old Act was a mere right to take advantage of the enactment and, therefore, without any act done by an Individual permit-holder towards availing himself of that right, it cannot properly be deemed a right accrued". See Abbot v. Ministry of Land 1895 AC 425 . In
9. Another point urged by Sri L.P. Naithani was that the renewal of permits though granted after the enforcement of the new Act was not void but only voidable and hence it was urged, that the Petitioners being aggrieved persons could very well challenge the grant of new permits on the concerned route. Sri Naithani placed reliance on a decision of Rajasthan High Court in Inder Singh v. S.T.A. (T) AIR 1980 Raj 131 and Anr. decision of the same High Court in Shakuntala Devi v. Appellate Tribunal AIR 1971 Raj 226. In the later of the aforesaid decisions, the Rajasthan High Court has held as under:
The grant of permit in such a case would no doubt be illegal as being against the provisions of the Motor Vehicles Act but it would not be null and void. The Regional Transport Authority has Jurisdiction to grant a permit. It is expected that it will grant it in accordance with the provisions of the Motor Vehicles Act. But, if it grants it in defiance of the provisions of the Act, it acts with material irregularity in the exercise of its jurisdiction but not without Jurisdiction. The permit so granted is not void but only voidable.
In my opinion, the Petitioners could be said to be aggrieved persons so as to be entitled to challenge the grant of new permit only if they had a right to run the permit on concerned routes. Section 66 of the new Act prohibits the owner of the motor vehicle from using the vehicle as a transport vehicle in any public place" save in accordance with the conditions of a permit granted or countersigned "by (a Regional or State Transport Authority) appropriate authority. The permit as defined in Section 2(31) of the new Act means a permit issued by appropriate authority under the Act. The power to renew a stage carriage permit granted under the old Act depends upon the maintainability of the application for renewal under the new Act. Quilon''s case, in effect, is an authority on the point that the new Act forbids renewal of a stage carriage permit granted under the old Act except possibly in matters pending on the date of commencement of the new Act, if the decision in Quilon''s case is anything to go by. then the renewal of permits in favour of the Petitioners has to be ignored Inasmuch as in view of Quilon''s case (supra), any right to run the stage carriages" must be under permit granted under the Act as per its provisions".
10. The applications for renewal of permits granted under the old Act were not maintainable having been moved after the enforcement of the new Act and renewal of permits granted in the cases on hand can in no case be made the basis of an action of law for" what is done in contravention of the provisions of an Act of Parliament cannot be made the subject-matter of an action." in this view of the matter, it is unnecessary to go into the question whether the grant of permits by way of renewal of permits issued under the old Act is void or merely voidable. A formal declaration under Judicial pronouncement as to the renewal being void or voidable was not necessary for the purposes of deciding the question if the Petitioners had any right to challenge the grant of permits under the new Act. Since the permits illegally renewed were sought to be relied upon by the Petitioners as basis of their action in revision, the Tribunal was justified in going over the question whether on the basis of renewed permits, the Petitioners could challenge the grant of permits under the new Act and for reasons aforestated, the decisions of Rajasthan High Court in Shakvntala Devi andJnder Singh (supra) do not help the petitioners.
11. Sri A.D. Saunder, learned Counsel appearing for the Petitioners in some of these writ petitions put forth an additional point that his clients were granted permit under a scheme approved under the old Act which scheme, it was urged, still holds good and as such, the renewal could not be declined to his clients. The submissions advanced by the learned Counsel are born more of fallacies to be dictated upon, reckoned with and rejected. It is the permit which entitles the holder of it to operate stage carriage on the route concerned and mere continuance of old scheme under the new Act leaves no room to hold that a permit granted under the old Act can be renewed under the new Act even though the application for its renewal is moved after the enforcement of the new Act and/or grant is inhibited by the new Act. No other points were pressed Into service.
12. In the above conspectus, the petitions fail and are dismissed. Interim orders granted by this Court shall stand discharged.
