GAJRAJ SINGH ETC. v. STATE TRANSPORT APPELLATE TRIBUNAL AND ORS. ETC.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. Common questions of law have arisen in all these cases. The facts in Gajaraj Singh's case are sufficient for disposal of all these cases. Though notices were served on respondents, Shri Goel E appeared for the State and Shri Pramod Swarup for the UPSRTU, none is appearing in other cases.

In 1988, the appellant was granted a stage carriage permit on the Meerut-Baraut route under Section 47(3) of the Motor Vehicles Act, 1939 p (4 of 1939) (for short, the 'Repealed Act') for a period of 3 years. The Motor vehicles act, 1988 (59 of 1988) (for short, the 'Act') came into force w.e.f. July 1, 1989. The said p·ermit was renewed under Section 81 of the Act in 1991 for a further period of 5 years and the second renewal was granted in 1995. Respondents 3 to 17 had applied under Section 70 for grant of stage carriage permits under Section 72 on the Meerut-Gangoh G route which intersects part of the route on which the appellant was operat- ing his stage carriage. Despite objections raised by the appellant, the State Transport Authority (for short, 'STA') granted permits to them on Novem- ber 23, 1992 which came be challenged by the appellants in revision filed under Section 90 before the State Transport Appellate Tribunal (for short, H 'STAT'). The respondents questioned the appellant's locus standi under

GATRAJ SINGH v. STATE (K. RAMASWAMY, J.] 183

the preliminary objection that the renewal granted under Section 81 to the appellant was void. By order dated August 9, 1995, the STAT upheld the ·. preliminary objection and held that the appellant has no locus standi to object the grant of permits to the respondents, since the renewal of the permit granted to the appellant was not valid in law as he had not got any new permit under the Act. The High Court in the impugned judgment B dated October 13, 1995 made in Writ Petition No. 26132of1995 has upheld the order of the STAT. Thus, this appeal by special leave.

Shri K.K. Venugopal, learned senior counsel for the appellant, con- tended that the renewal of the permit of the appellant granted under the Repealed Act is a permit under the Act and its operation was saved by C Section 217(2)(a) read with sub-section (4) thereof. Therefore, the second renewal granted under Section 81 was valid in law. There was no need for the appellant to obtain a fresh permit under the Act as the renewal is a continuation of the original permit which is a vested right. The effect of saving provisions in Section 217(2)(a) is to allow all the permits granted D under the Repealed Act to continue after renewal under the Act. Section 217(2)(a) and sub-section (4), thus, obviate the need to obtain fresh permit under the Act and, therefore, it would be unnecessary. In support thereof, he placed strong reliance on M/s. Gurcharan Singh Baldev Singh v. Yash- want Singh & Ors., [1992] 1 SCC 428. He further contended that this Court in Secret01y Quillon Distt. Motor Transp01t Workers' Cooperative Society Ltd E v. Regional Transp01t Auth01ity & Ors., [1994] Supp. (3) SCC 210 did not intend to lay down that after the Act came into force, all the holders of stage carriage permits granted tinder the Repealed Act would be required to obtain fresh permits under the Act. Section 6 of the General Clauses Act (for short, the 'GC Act') read with Section 217(2)(a) and (4) saves operation of all those permits which were alive when the Act came into force. Consequently, renewals granted under Section 81 were valid. For contra construction, an argument of inconvenience was forcefully projected. He argued that Section 217(2)(b) would be applicable only if the permit is inconsistent with the provisions of the Act in which event the life of the permit granted under the Repealed Act gets extended only for the balance period of permit.

Shri S.K. Dhaon, learned Counsel appearing in C.A.@ SLP (C) No. 27335/95, contended that the permits granted to the existing· operators under the nationalised scheme in Chapter IV-A of the Repealed Act are H

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' . A not required to be renewed under Section 81 of the Act as they have already been saved being existing permits. So the need to obtain fresh permits under the Act would be inconsistent with the scheme of the Repealed Act as well as the Act. Shri Venugopal buttressed the contention emphasising that the renewal is only a continuation of the existing permit granted under the Repealed Act. The need for fresh permit arises only if B the renewal is inconsistent with the provisions of the Act. Therefore, the view of the High Court is clearly not sust~inable in law. In support thereof, Shri Venugopal placed strong reliance on D. Nataraja Mudaliar v. The State Transport Auth01ity, Madras, (1978) 4 SCC 290; State of Punjab v. Mohar Singh, (1955) 1 SCR 893 and M/s. Universal Imp01ts Agency & Anr. v. Tlze c Chief Controller of Imp01ts and Exp01ts & Ors. (1961) 1 SCR 305. Shri Harish N. Salve, appearing for some of the existing operators in the nationalised schemes, contended that they were not paid compensation since permits in their names were saved with corridor restrictions. They are, therefore, entitled to renewal of permits as a matter of right. D Shri Adrash Kumar Goel, learned counsel for the state, resisted the contentions. According to him, the scheme of the Act in many a provision is inconsistent with the scheme of operation in the Repealed Act. When the Legislature manifested its intention as to its inconsistency in the opera- tion of the Act with the provisions of the Repealed Act, the STA or the E Regional Transport Authority (for short, 'RTA'), as the case may be, would be devoid of power and jurisdiction to grant renewal of permit under the Act. Consequently, the erstwhile holders of permits are required to obtain fresh permits under the Act. The Repealed Act has been saved only to the extent of validating, under Section 217(2)(b), the continuation of the permit for the unexpired period granted under the Repealed act. The owner of the vehicle, thereby, became entitled. to operate, for the balance period, stage carriage on the respective route. On its expiry, the erstwhile holder of the permit ceases to have the permit under the Act until he obtains afresh stage carriage permit under the Act. To obviate the difficulty of running the stage carriage between the date of application for permit and the date of grant, the Act provides for grant of temporary permits. There is no hiatus in the operation in that behalf and any grant of permit or renewal should only be consistent with the provisions of the Act. Other- wise, the Repealed Act continues to remain in operation, in spite of its express repeal by Section 217(1) of the Act. The ratio of this Court in H Secretary, Quillan Dist1ict Motor Transp01t Worker's Cooperative Society

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Ltd.'s case (for short, 'Quillon's case) would be applicable to the situation. A The ratio in Gzirnchara11 Singh's case (supra) would be applicable only to a pending application for renewal filed before the Act came into force which would be disposed of by operation of Section 217(2)(a) as saved by Section 217(4) of the Act. If so understood, there is no inconsistency in the ratio of the aforesaid two decisions of this Court and the operation of the provisions of the two Acts.

We issued notice to Shri Promod Swamp to appear on behalf of STUs and argue on the question of renewal of permits covered by the schemes. He contended that they are not entitled to renewal under Chapter VI of the Act. Chapter V does not apply to them. Therefore, they have no right to apply or obtain permit under Section 72 or renewal under Section 81.

We may make it clear at this juncture that when the .cases had come up for admission and Shri Venugopal had pointed out to plausible misap- D prehension in the operation of the the ratio laid down by this Court in the above two cases, we had referred the matter to three Judge Bench. Thus, the matter has come before this Bench.

The question for consideration is : whether the holder of a stage carriage permit under the Repealed Act is required to obtain fresh permit E or a renewal of the permit as per the provision of the Act? To appreciate the contentions in proper perspective, it would be profitable to refer to the provisions of the Act, extent of their operation and their inconsistency with the provision in the Repealed Act so as to focus the tiue intentment and operation of the Act. Section 2(31) of the Act defines "pennit" to mean F a pennit issued by the State or Regional Tra11sp01t Auth01ity or an a11tlz01ity presC1ibed in this behalf under the Act (emphasis supplied) authorising the use of motor vehicle as a !ransport vehicle. "Transport vehicle" has been defined under Section 2(47) to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. "Stage G carriage" has been defined under Section 2(40) .to mean motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. "Route" has been defined under Section 2(38) to mean a line of travel which specifies the highway which may be traversed by a motor vehicle H

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A between one terminus and another. "Public service vehicle" has been defined by Section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage. These defini- tions similarly had found place in the Repealed Act with slight variations. B Chapter V of the Act under the heading "Control of transport vehicle" regulates use of, or permission for use of, the vehicles and the necessity to obtain permits in that behalf by an owner of motor vehicle. Section 66 enjoins every owner of a motor vehicle to obtain permit and no owner shall use the motor vehicle as stage carriage except in accordance c with the conditions of the permit granted or countersigned by the prescribed authority for its use in the public place. The manner in which the vehicle should be used gets regulated by the conditions of the permit, the rules and the law; the details thereof are not material. Section 67 empowers the State Government to control road transport. Section 68 enumerates the manner in which the RTA or the STA or other authorities under the Act would exercise the powers and perform functioi1s specified under the Act. Section 69 enjoins the owner of a vehicle to make applica- tion for permit.

Section 70 specifies the procedure for making an application to obtain stage carriage permit and· the conditions subject to which the application is required to be dealt with. Section 71 prescribes the proce- dure for ·sTA or RTA to consider such applications for grant of stage carriage permits. It envisages, under sub-section (3) thereof, that subject to the number of vehicles, road conditions and the relevant matters, the F State Government shall, by a notification, direct an STA or RTA to limit the number of stage carriages generally or of any specified, type as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs. Its, operation is subject to clause (b) and (c) thereof. The proviso to sub-section (3) of Section 71 envisages that other conditions being equal, preference shall be given to applications for permits from (1) State transport undertakings; (ii) co- operative societies registered or deemed to have been registered under any enactment for the time being in force; (iii) ex-servicemen; and (vi) any other class or category of persons, as the State Government may, for reasons to be recorded in writing, consider necessary. On other routes, except town service, no restrictions are imposed unlike in Section 47{3) of

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the Repealed Act to grant stage carriage permits. Section 72 empowers the A RTA or STA to decide an application for grant of a permit to operate a Stage carriage with any one or more of the conditions enumerated under sub- section (2) thereof or the rules or conditions attached to the permit.

Section 80 prescribes procedure to apply for and grant of renewal of permits. Sub-section (2) envisages that on an application made under sub-section (1) at any time, the STA or RTA or any prescribed authority under Section 66, shall not ordinarily refuse to grant an application for pemiit of any kind made under the Act. (emphasis supplied). The proviso lifts the embargo of sub-section (2) and permits summary refusal of the application, if such a grant would have the effect of "increasing the number of stage carriages as fixed and specified in a notification" under Section 71(3)(a) or of the contract carriages as fixed and specified in a notification under Section 74(3)(a). Under the proviso to Section 71(1), prior to its amend- ment thereof by Section 23 of Amendment Act 54 of 1994, the RTA/STA was prohibited to grant permit for a route of 50 kilometers or less to all juristic persons and to grant permit "only to an individual or a State D Transport undertaking". The Amendment became operative from Novem- ber 14, 1994 and the above prohibition no longer operates.

Section 81 regulates renewal of permits and duration thereof. Sub- section (1) visualises that a permit, other than a temporary permit issued under Section 87 or special permit issued under Section 88(8), shall be effective from the date of issuance or renewal thereof for a period of 5 years. Under the proviso, the period of countersigned permit is coterminus with the validity of the primary permit. Sub-section (2) prescribes the limitation within which an application for renewal should be made before expiry of original grant or renewal. Sub-section (3) gives discretion to condone the delay in making the application for the grounds mentioned thereunder. Sub-section (4) enumerates grounds for refusal of renewal of a permit for one or more of the grounds enumerated thereunder. The terms and conditions subject to which stage carriage permit is required to be renewed are different from those of Section 58 of the repealed Act except the procedural part. Sub-section (2) of Section 58 of the Repealed G Act gives preferential freatment for renewal of a permit in favour of the holder of the permit, while Section 81 of the Act does not give such preferential right to renewal. On the other hand, if the permits granted under Section 72 exceed the limit prescribed by the State Government for town service, there would be danger of refusal or renewal subject to giving H

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A reasons in support thereof. Equally, in relation to other routes, discretion is given to reject renewal of a permit for reasons to be recorded in the order.

Chapter VI deals with special provisions relating to State Transport Undertakings (for short, 'STU') which is equivalent to Chapter IV-A of B the Repealed Act. By operation of Section 98, Chapter VI and the rules and orders made thereunder shall have overriding effect over the inconsis- tent provisions contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law. The STU shall provide an efficient, adequate, economical and properly co- C ordinated road transport service on the notified area or route or portion thereof to the exclusion of the private operators except as exempted in the scheme itself which itself is a self-operative law. The details are not material for the purpose of this case except that under the said Chapter, there is no specific provision, like Section 68F(1D) for renewal in favour of any person or any class in relation to an area or route or portion thereof D covered by such scheme for renewal, or Section 68F(1E) in favour of STU.

Section 217 repeals the existing laws and provides savings from its operation. Sub-section (1) specifically repeals Act 4 of 1939 and any law corresponding to that Act in force in any State before July 1, 1989. E Sub-section (2) with a non obstante clause provides certain savings as provided thereunder :

Clause (a) of Section 217(2) provides that notwithstanding the repeal of act 4 of 1939 or any other analogous enactments in operation, any notification issued, rule, regulation made, order passed or notice issued or F any appointment or declaration made, or exemption granted or any con- fiscation made, or any penalty or fine imposed, any forfeiture, cancellation or any other thing done (emphasis supplied) or any other action taken under the Repealed Act and in force immediately before July 1, 1989 shall, so far as it is not inconsistent with the provisions of the Act (emphasis supplied) G be deemed to have been issued, made, granted, done or taken under the corresponding provision of the Act. In other words, clause (a) saves such of those enumerated events under the Repealed Act which are consistent with the provisions in the Act.

Clause (b) of Section 217(2) provides that any certificate of fitness or registration or licence or pemiit (emphasis supplied) issued or granted

GAJRAT SINGH v. STATE (K. RAMASWAMY, J.] 189

under the repealed enactment shall continue to have effect after such commencement under "the same conditions and for the same period" as if the Act had not been passed (emphasis supplied). In an emphatic manner, the saving provision provides that, notwithstanding the repeal of Act 4 of 1939 or any corresponding law, the permit issued under the Repealed Act should continue to operate proprio vigore till its life expires under the same conditions and for the same period as if the Act was not passed. Other clauses are not relevant. Hence they are not dealt with.

Clause (e) deals with the scheme under Section 68-C or under the corresponding law in operation, which shall be disposed of under Section 100 of the Act. Similarly, temporary permits issued under sub-section (1-A) C of Section 68F of the Repealed Act or under the corresponding provisions shall, because of use of clause (f), continue to remain in force until approved scheme under Chapter VI of the Act is published. The omission to provide similar right of renewal of permanent permit like one available under Section 68F(1D) to a private operator or to STU under Section D 68(1F) is significant and deliberate. It should be presumed that the Parlia- ment having made similar provision in Section 81 for renewal of permits issued in Chapter V of the Act, the omission thereof in Chapter VI in relation to the private operators manifests the intention of the Parliament that the right to obtain stage carriage permit, contract carriage permit or temporary permit on the notified area or route or a portion thereof has been frozen to all private operators except to the extent of the right to ply stage carriage on the basis of the permits saved under Chapter IV-A of the Repealed Act. Therefore, the result would be that even the private operators whose permits were saved also would have limited operation under Section 217(2)(b) to ply their stage carriages for the unexpired period only. So, limited validity of permits to run stage carriages etc. on the nationalised routes or notified area or portion thereof in the approved scheme was saved so that the holder of the stage carriage permits will have full course of unexpired life of the permits granted under the Repealed Act. In other words, Section 217(2)(b) breathed limited life into all permits granted under the repealed Act except those granted to STU under approved or draft schemes to run its full course. It was so manifested by Section 217(4) and Section 6 of the GC Act. The operation of law in Chapter IVA of the Repealed Act as declared by this Court would be of much assistance for interpretation in this behalf. H

190 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R. ·

A In Mysore State Road Transport Corporation v. Mysore State Transp01t Appellate Tlibunal, (1974) 2 SCC 750, it was held that no licence can be granted to any private operator whose route traversed or over- lapped any part of a notified route or routes as prohibited in Chapter IV-A of the Repealed Act. An applicant seeking grant of a permit on a route which overlapped even on a portion of a notified route was held to be not entitled to the grant of the permit. In Adarsh Travels Bus Service and Another v. State of U.P. & Ors, [1985) 4 SCC 557, a Constitution Bench of this Court approved the above law and had held that under Sections 68FF, 68B, 68C, 68D read with Section 2 (28A), once a scheme was published under Section 68D in relation to any area or a route or portion thereof, whether to the exclusion, complete or partial, of other persons or other- wise, no person other than the .State Transport Undertaking may operate on the notified area or notified route except as provided in the scheme itself. No private operator can operate his vehicle on any portion of the notified are or notified route unless authorised to do so by terms of the scheme itself. Therefore, corridor shelter was impermissible on a notified area, route or a portion of the route. It was further held that unless the scheme provides for exempting operators already having permit for com- mon sector from the scheme by incorporating appropriate conditional clauses in the scheme to enable them to ply their vehicles over common sectors without picking up or setting down passengers on the common sectors, it was not open to the RTA or STA to grant permits on the notified area or notified route providing corridor shelter.

In T.V. Nataraj & Ors. v. State of Kamataka & Ors., (1994) 2 SCC 32, a Bench of two Judges of this Court considered the integrity of the route, p the effect of the notification of the scheme under Section 68C of the Repealed Act and held that on publication of the approved scheme under Section 68A, the private operators were excluded, utiless saved· by the scheme itself, to operate on an approved area or route by obtaining· permits to run the stage carriage on the approved route under the Scheme. In the absence of any express exemption in the Scheme, the exclusion of the G private operators to operate the stage carriage on the approved scheme is total and complete. It was only for the State Government to take steps to put vehicles on approved schemes so as to avoid any inconvenience to the travelling public.

H In Ram Krishna Venna & Ors. v. State of U.P. & Ors., [1992) 2 SCC

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620 another Bench of two Judges had considered the scheme of Chapter A IV-A of the Repealed Act and Sections 80 and 98 of the Act. It was held that the scheme published under Section 68D of the Repealed Act (Chap- ter VI of the Act) is a law and it has over-riding effect over chapter IV of the repealed Act (Chapter V of the Act). The scheme operates against everyone unless it is modified. It excluded private operators from the B notified area or notified route or a portion thereof covered under the scheme except to the extent saved under the scheme itself. The right of the private operators to apply for and to obtain permits under Chapter IV of the Repealed Act (Chapter V of the Act) had been totally frozen and prohibited. The result was that on the approved nationalised route or area, the private operators were totally prohibited to obtain permits under c Section 72 or renewal under Section 81 of the Act to ply their stage carriages. This ratio was reiterated by another Bench in Nisar Ahmad & Ors. v. State of U.P. & Ors., [1994) Supp. 3 SCC 460 holding that the approved scheme is a law by itself and everyone, whether or not party to the earlier order of this Court K.K. Venna's case, was bound by the law laid down and directions given by this Court under Article 142(2) of the Constitution.

It is seen that Chapter VI of the Act empowers STU to frame schemes which have over-riding effect, by operation of Section 98, on Chapter V and other laws. Section 101 with a non obstante clause gives power to the STU to operate additional services for the conveyance of the passengers on special occasions such as to and from fairs and religious gatherings. Section 102 empowers the State Government to modify or cancel the approved scheme only in the public inter.;st. Section 103 gives exclusive right to the STU to apply for and obtain stage carriage permits or goods carriage permits or contract carriage permits in respect of a notified area or notified route or portion thereof. Section 104 prohibits STA or RTA to grant any permit except in accordance with the scheme. Thus, private operators whose named permits were saved from the scheme, became entitled to operate their stage carriages subject to corridor restric- tions of picking up on up and setting down the passangers enroute on the overlapped route.

It would, thus, be clear that there is no provis10n like Section 68F(1D) of the Repealed Act to obtain renewal of a permit saved under the scheme to private operators. In contrast, sub-section (2) of Section 103 H

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A gives power to the STA or RTA, on application made by the STU under Section (1) thereof, either to grant any other permit or reject a pending application or to cancel an existing permit or to modify the terms of an existing permit in the manner indicated in clause (c) of sub-section (2) of Section 103. It would, thereby, indicate the inconsistency with the provisions contained in Chapter IVA of the Repealed Act. B Whenever an Act is repealed it must b_e considered, except as to transaction past and closed, as if it had never existed. The effect thereof is to obliternte the Act completely from the record of the Parliament as if it had never been passed, it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was existing law. Legal fiction is one which is not an actual reality and which the law recognises and the court accepts as a reality. Therefore, in case of legal fiction the court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non- existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances. Therefore, when Section 217(1) of the Act repealed Act 4 of 1939 w.e.f. July 1, 1989, the law in Act 4 of 1939 in effect came to be non-existent except as regards the transactions, past and closed or saved.

E In Crawford's Interpretation of Law (1989) at page 626, it is stated that "(A)n express repeal will operate to abrogate an existing law, unless there is some indication to the contrary, such as a saving clause. Even existing rights and pending litigation, both civil and criminal, may be affected although it is not an uncommon practice to use the saving clause in order to preserve existing rights and to exempt pending litigation". At page 627, it is stated that "(M)oreover, where a repealing clause expressly refers to a portion of a prior Act, the remainder of such Act will not usually be repealed, as a presumption is raised that no further repeal is necessary, unless there is irreconcilable inconsistency between them. In like manner, if the repealing clause is by its terms confined to a particular Act, quoted by title, it will not be extended to an act upon a different subject". Section 6 of the GC Act enumerates, inter alia, that where the Act repeals any enactment, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b). affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right,

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privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced. In India Tobacco Co. Ltd. v. The Commercial Tax Officer, Bhavanipore & Ors., [1975) 3 SCC 512 at 517 in paras 6 and 11, a Bench of three Judges had held that repeal connotes abrogation and obliteration of one statute by another from the statute book as completely as if it had ~ever been passed. When an Act is repealed, it must be considered, except as to transactions past and closed, as if it had never existed. Repeal is not a matter of mere form but is of substance, depending on the intention of the Legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal.

When there is a repeal and simultaneous re-enactment, Section 6 of the GC Act would apply to such a case unless contrary intention can be gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be- ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates dif- E ferent intention. The object of repeal and re- enactment is to obliterate the Repealed Act and to get rid of certain obsolete matters. (

On "Saving of rights acquired", in the Principles of Statutory Inter- pretation by G.P. Singh [(Sixth Edition) - 1996) at page 413, the learned F author has stated that the effect of clauses (c) to (e) of Section 6 of GC Act is, speaking briefly, to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for. enforcement of such rights and liabilities. At page G 418, the learned author has stated that the privilege to get an extension of a licence under an enactment is not an accrued right and no application can be filed after the repeal of the enactment for renewal of the licence. In Legislation and Interpretation by Jagdish Swarup (1974 Ed.) at page 539, it is stated that the power to take advantage of an enactment may H

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