PETITIONER:
MOHD-ASHFAQ
Vs.
RESPONDENT:
STATE TRANSPORT APPELLATE TRIBUNAL U.P. AND ORS.
DATE OF JUDGMENT10/09/1976
BENCH:
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1976 AIR 2161 1977 SCR (1) 563
1976 SCC (4) 330
ACT
Motor Vehicles Act, 1939---S. 58(2) proviso--Delay in apply-
ing for renewal of existing permit--If could be
condoned--Chapter IV A. -- If a delf contained code--Renew-
al application under S. 68F(1D)Whether s.57 applicable.
Limitation Act, 1963--Ss. 5 and 29(2)--If applicable.
HEADNOTE
Under the proviso to s. 58(2) of the Motor Vehicles Act,
1939 an application for renewal of an existing permit shall
be made not less than 120 days before the date of expiry of
the permit. The procedure to be followed in this respect is
the same as provided in s. 57 for the grant of a fresh
permit. Under s. 58(3) a delay of not more than 15 days in
making the renewal application can be condoned by the Re-
gional Transport Authority.
The proviso to s. 68F(1D) provides for the renewal of an
existing permit for a limited period when a Scheme is pub-
lished under s. 68C. Since a Scheme was published under
this section the appellant made an application under s.
68F(1D) for renewal of his permit. R was rejected by the
RTA on the ground that there was delay of 18 days which was
not capable of being condoned. The Transport Appellate
Tribunal dismissed his appeal and the High Court summarily
rejected his writ petition.
In appeal to this Court it was contended that (i) Chapter
IVA of the Act, which s. 68 occurs, being a self-contained
code the proviso to s. 58(2) was not applicable in the case
of an application for renewal filed under the proviso to s.
68F(1D) or (ii) in the alternative the delay could be con-
doned by the RTA for sufficient cause under s. 5 read with
s. 29(2) of the Limitation Act, 1963.
Dismissing the appeal,
HELD: (1) (a) Section 68F(1D) imposes a prohibition on
grant or renewal of permit during the intervening period
between the publication of a scheme under s. 68C and the
publication of the approved scheme and if the proviso were
not enacted. renewal of an existing permit expiring after
the publication of the scheme under s. 68C would have been
barred. This, the legislature did not want and hence the
proviso was introduced permitting renewal of an existing
permit though for a limited period, despite the general
prohibition enacted in sub-s. (1D). This renewal was not
intended to be some special kind of renewal. There is no
reason why the provisions of s. 57 and the proviso to s.
58(2) should not apply in case of a renewal application
under the proviso to s. 68F(1D).[569 A-B]
(b) chapter IVA is not a self-contained code and the
other sections apply to an application under the proviso to
s. 68F(1D)of the Act. [569D]
(i) The procedure in s. 57 applies because. there is no
other procedure prescribed by the Act. [569C]
(ii) The time limit specified in the proviso to s. 58(2)
also applied as otherwise there would be no time limit for
making an application for renewal.[569D]
(iii) Section 68F(3) also proceeds on the assumption
that, but for its enactment, an order made by the RTA under
sub˜3 (1) or (2) of s. 68F would have been appealable under
s. 64 and it was to exclude the applicability of s. 64 that
68F(3) was enacted. [569 E-F]
564
(2) The word used in sub-s. 3 is ’may’ and not ’shall’
and the RTA is given a discretion to entertain an applica-
tion for renewal of a permit even where it is beyond time,
though not more than 15 days. It could never have been the
intention of the legislature that even where there is no
sufficient cause for delay in making an application for
renewal, the Regional Transport Authority should still be
bound to entertain the application for renewal merely on the
ground that the delay is of not more than 15 days. [570F.
571A-B]
3 (a) Section 29(2) of the Limitation Act, 1963 makes s.
5 applicable in the ease of an application for renewal
unless its applicability can be said to be expressly exclud-
ed by any provision of the Act. Sub-section (3) of s. 58 in
so many terms says that the RTA .may condone the delay in
making of an application for renewal and entertain it on
merits provided the delay is of not more than 15 days. This
clearly means that if the application for renewal is beyond
time by more than 15 days, the RTA shall not be entitled to
entetain it.
[571E-G]
(b) There is an express provision in sub-s. (3) that
delay in making an application for renewal shall be condona-
ble only if it is of not more than 15 days and that express-
ly excludes the applicability of s. 5 in cases where an
application for renewal is delayed by more than 15 days.
[571G]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 871 of 1974.
(Appeal by Special Leave from the Judgment and Order
dated 3-4-1973 of the Allahabad High Court in Civil Misc.
Writ Petition No. 2128/73).
Yogeshwar Prasad and Miss Rani Arora for M/S Bagga for
the Appellant.
G.N. Dikshit and O.P. Ran, for Respondents No. 1 and 2.
The Judgment of the Court was delivered by
BHAGWATI, J. This appeal by special leave is directed
against an order passed by the High Court of Allahabad
rejecting a writ petition filed by the appellant challenging
the validity of an order of the State Transport Appellate
Tribunal confirming an order of the Regional Transport
Authority rejecting the application of the appellant for
renewal of his stage carriage permit for the route Nagina-
Jaspur.
The route Nagina-Jaspur lies within the jurisdiction of
the Regional Transport Authority Bareilly. The appellant and
his brother Mohd. Ashfaq held a stage carriage permit for
this route for some years and it was due to expire on 1st
July, 1971. Before the expiration of the period of permit,
however, a scheme was prepared and published by the State
Transport Undertaking under Section 68C of the Motor
Vehicles Act 1939 (hereinafter referred to as ’the Act’)
and this scheme covered the route Nagina-Jaspur. The
publication of this scheme did not affect the validity of
the permit of the appellant and Mohd. Ashfaq and they
continued to ply their motor vehicles on the route Nagina-
Jaspur on the strength of the permit. During the currency
of the permit, several amendments of a far-reaching charac-
ter were made in the Act by Act 56 of 1969 and sub-sections
(1A) to (1D) were introduced in Section 68F after sub-sec-
tion (1). These sub-sections are material and they may be
reproduced as follows:
"68F(1A) Where any scheme has been published by a State
Transport Undertaking under section 68C, that Undertaking
may apply for a temporary permit. in respect of any
565
area or route or portion thereof specified in the said
scheme, for the period intervening between the date of
publication of the scheme and the date of publication of the
approved or modified scheme, and where such application is
made, the State Transport Authority or the Regional Trans-
port Authority, as the case may be, shall, if it is satis-
fied that it is necessary to increase, in the public inter-
est, the number of vehicles operating in such area or route
or portion thereof, issue the temporary permit prayed for by
the State Transport Undertaking.
(1B) A temporary permit issued in pursuance of the
provisions of sub-section (1A) shall be effective,--
(i) if the scheme is published under sub-section
(3) of section 68D, until the grant of the permit
to the State Transport Undertaking under sub-
section (1), or
(ii) if the scheme is not published under sub-
section (3) of section 68D, until the expiration of
the one week from the date on which the order under
sub-section (2) of section 68D is made.
(1C) If no application for a temporary
permit is made under sub-section (1A), the State
Transport Authority or the Regional Transport
Authority, as the case may be, may grant, subject
to such conditions as it may think fit, temporary
permit to any person in respect of the area or
route or portion thereof specified in the scheme
and the permit so granted shall cease to be effec-
tive on the issue of a permit to the State Trans-
port Undertaking in respect of that area or route
or portion thereof.
(1D) Save as otherwise provided in sub-
section (1A) of sub-section (1C), no permit shall
be granted or renewed during the period intervening
between the date of publication, under section 68C
of any scheme and the date of publication of the
approved or modified scheme, in favour of any
person for any class of road transport service in
relation to an area or route or portion thereof
covered by such scheme:
Provided that where the period of operation
of a permit in relation to any area, route or
portion thereof specified in a scheme published
under section 68C expires after such publication,
such permit may be renewed for a limited peri-
od, but the permit so renewed shall cease to be
effective on the publication of the scheme under
sub-section (3) of section 68D."
Since the permit of the appellant and Mohd. Ashfaq was going
to expire on 1st July, 1971, the appellant made an applica-
tion for renewal of the permit under the proviso to sub-
section (1D) of Section 68F and submitted the application to
the Regional Transport Authority on 22nd March, 1971. When
the application came up for hearing before the
566
Regional Transport Authority, there was admittedly no objec-
tor against it, but the Regional Transport Authority took
the view that under the proviso to sub-section (2) of Sec-
tion 58 an application for renewal of a permit is required
to be made not less than 120 days before the date of expiry
of the permit and even if there is delay in making the
application, it can be condoned under sub-section (3) of
Section 58 but only if it is a delay of not more than 15
days and since in the present case the application for
renewal of the permit was made by the appellant on 22nd
March, 1971, it was late by 18 days and hence the delay was
not capable of being condoned and in this view, the
Regional Transport Authority by an order dated 28th March,
1973 rejected the application for renewal of the permit as
time-barred.
The appellant preferred an appeal to the State Transport
Appellate Tribunal and in the appeal the appellant chal-
lenged the correctness of the order of the Regional Trans-
port Authority. The State Transport Appellate Tribunal,
however, agreed with the view taken by the Regional
Transport Authority and held that in view of the specific
prohibition contained in sub-section (3) read with the
proviso to subsection (2) of Section 58 it was not competent
to the Regional Transport Authority to condone the delay in
making of the application for renewal of the permit, since
the delay was of more than 15 days. The State Transport
Appellate Tribunal also observed that in any event the
material produced before the Regional Transport Authority
did not make out any sufficient cause for not making the
application for renewal of the permit within time and hence
even if there was no statutory bar against condonation of
delay of more than 15 days, this was not a fit case in which
the delay should be condoned. The State Transport Appellate
Tribunal accordingly confirmed the order of the Regional
Transport Authority.
This led to the filing of a writ petition by the appel-
lant in the High Court of Allahabad. The High Court sum-
marily rejected the writ petition stating that no ground
had been made out for exercise of the extraordinary juris-
diction of the High Court under Article 226 of the Constitu-
tion. Hence the appellant brought the present appeal with
special leave obtained from this Court.
Two contentions were urged on behalf of the appellant in
support of the appeal. The first contention was that the
time limit specified in the proviso to sub-section (2) of
section 58 was not applicable in case of an application for
renewal of a permit under the proviso to subsection (10) of
section 68F and the Regional Transport Authority was not
entitled to reject the application of the appellant for
renewal of his permit as time-barred. It has also been
contended in the alternative that even if the time limit set
out in to proviso to sub-section (2) of section 58 was
applicable, sub-section (3) extended such time limit by
fifteen days and even if thereafter there was any delay
beyond the extended time limit, it could be condoned by the
Regional Transport Authority for sufficient cause by reason
of section 5 read with section 29, subsection (2) of the
Limitation Act, 1963. The second contention Which followed
on the acceptance of the last contention was that the
appellant had sufficient cause for not preferring the appli-
cation for renewal
567
of his permit within the extended time limit and hence the
Regional Transport Authority should have condoned the delay
and entertained the application on merits. The validity of
both these contentions was disputed on behalf of respondents
1 and 2 and it was urged that the time limit specified in
the proviso to sub-section (2) of section 58 was applicable
in the present case and the only delay which could be con-
doned was a delay of 15 days and not more and in any event,
there was no sufficient cause made out by the appellant for
not making the application for renewal within time and hence
the application for renewal was rightly rejected as time-
barred. We shall proceed to consider the merits of these
rival contentions.
The first question which arises for consideration on
these contentions is as to whether the time limit pre-
scribed by the proviso to subsection (2) of section 58
applies in case of an application for renewal of a permit
under the proviso to sub-section (10) of section 68F. The
argument of the appellant was that Chapter IVA which
contains, inter alia, section 68F, is a self-contained
Chapter and nothing in the other provisions of the Act
applies to proceedings under that Chapter and hence neither
the procedure under section 57 nor the time limit specified
in the proviso 10 sub-section (2) of section 58 has any
application to an application for renewal of a permit under
the proviso to sub-section (10) of section 68-F. This
argument is, in our opinion, manifestly wrong. The scheme
of Chapter IVA is clear and it does not exclude the applica-
bility of the provisions contained in section 57 and the
proviso to sub-section (2) of section 68. Chapter IVA
contains a fasciculus of sections commencing from section
68A and ending with section 68-B. Section 68-A defines
certain expressions used in Chapter IVA. Section 68-B gives
overriding effect to the provisions contained in Chapter IVA
by saying that these provisions shall have effect, notwith-
standing anything inconsistent therewith contained in
Chapter IV or in any other law for the time being in force.
Section 68-C provides that where any State Transport
Undertaking is of opinion that for the purpose of provid-
ing an efficient, adequate, economical and properly co-
ordinated road transport service, it is necessary in the
public interest that road transport service in relation to
any route should be run and operated by the State Transport
Undertaking, a scheme may be prepared by the S1ate Transport
Undertaking giving particulars of the nature of the services
proposed to be rendered, the route proposed to be covered
and other prescribed particulars and such scheme shall be
duly published. Certain categories of persons are empow-
ered by section 68-D sub-section (1) to file objections
against the scheme published under sect-ion 68-C and the
State Government may then, after considering such objections
and hearing the parties, approve or modify the scheme under
sub-section (2) of section 68-D. Section 68-D sub-section
(3) provides that the scheme as approved or modified under
sub-section (2) shall be Published in the Official
Gazette and it shall thereupon become final and shall be
called the approved scheme and the routes to which it
relates shall be called the notified routes. Section 68-E
provides for concellation or modification of the scheme.
Then follows section 68-F which is material for our purpose.
Sub-section (1) of that section provides for issue of a
permit to the State Transport Undertaking in respect of a
notified route
568
after publication of an approved scheme. But what is to
happen during the period between the publication of a
scheme under section 68-C and the publication of the ap-
proved scheme under sub-section (3) of section 68-D ? That
is taken care of by sub-sections (1A) to (1-D) of section
68F. Sub-section (1-A) provides that for this intervening
period, the State Transport Undertaking may apply for a
temporary permit in respect of a route specified in the
scheme and where such application is made, the Regional
Transport Authority shall, if it is satisfied that it is
necessary to increase, in the public interest, the number of
vehicles operating on such route, issue the temporary
permit prayed for by the State Transport Undertaking. What
shall be the duration of such temporary permit is laid down
in sub-section (1-B). Sub-section (1-C) deals with the
situation where no application for a temporary permit is
made by the State Transport Undertaking and it says that in
such a case, the Regional Transport Authority may grant
temporary permit to any person in respect of a route speci-
fied in the scheme. Sub-section (1-D) imposes a prohibi-
tion that "save as otherwise provided in sub-section (1-A)
and sub-section (1-C), no permit shall be granted or renewed
during the period intervening between the date of publica-
tion under section 68-C of any scheme and the date of publi-
cation of the approved or modified scheme, in favour of
any person" in relation to a route covered by such scheme,
but this is subject to a proviso that where the period of
operation of a permit in relation to any route "specified in
a scheme published under section 68-C expires after such
publication, such permit may be renewed for a limited
period". It will, therefore, be seen that where a scheme
is published under section 68-C, no permit in respect of a
route specified in the scheme can be granted or renewed
during the intervening period between the publication of the
scheme under section 68-C and the publication of the
approved scheme, except a temporary permit to the State
Transport Undertaking under sub-section (1-A) or failing
that, a temporary permit to any other person under sub-
section (1-C), with this qualification that an existing
permit can be renewed for a limited period. The holder of
an existing permit would obviously exnecessitas have to
make an application, if he wants renewal of his permit
and the application for renewal would be considered by the
Regional Transport Authority. The question is: can this
application for renewal be made at any time and when it is
made, what procedure would govern it. Section 57 lays down
the procedure to be followed in dealing with an application
got grant of a permit and by reason of section 58 sub-sec-
tion (2), that procedure is applicable also in relation to
an application for renewal of a permit. There is also a time
limit laid down in the proviso to sub_section (2) of section
58 which says, in so far as relevant, that an application
for renewal of a .permit shall be made not less than 120
days before the date of expiry of the permit. These provi-
sions in section 57 and the proviso to sub-section (2) of
section 58 on their plain language apply to every applica-
tion for renewal of a permit and it is indeed difficult to
see what difference there is between an application for
renewal of a permit under the proviso to sub-section (1-D)
of section 68-F and any other application for renewal of a
permit. An application for renewal of a permit under. the
proviso to sub-section (1-D) of section 68-F is as much an
application for renewal as any other. It had to be special-
ly provided for in the
569
proviso to sub-section (1-D) of section 68-F, because
sub-section (1-D) imposes a prohibition on grant or renewal
of permit during the intervening period between the publica-
tion of a scheme under section 68-C and the publication of
the approved scheme and, ii the proviso were not enacted,
renewal of an existing permit expiring after the publication
of the scheme under section 68-C would have been barred.
This, the Legislature did not want and hence the proviso was
introduced permitting renewal of an existing permit though
for a limited period, despite the general prohibition enact-
ed in sub-section (1-D). This renewal was not intended to be
sore6 special kind of renewal different from any other
ordinary renewal of a permit. There is, therefore, no
reason in principle why the provisions enacted in section 57
and the proviso to sub-section (2) of section 58 should not
apply in case of an application for renewal of a permit
under the proviso to sub-section (1-D) of section 68-F. If
the procedure set out in section 57 does not apply in such a
case, there is no other procedure prescribed by the Act
which can possibly be invoked and the result would be that
them would be no procedure for dealing with such an applica-
tion. for renewal and in that event, how would the objec-
tions be invited against the application for renewal and
within what time and who would be entitled to be heard and
when ? And equally if the time Limit specified in the
proviso to sub-section (2) of section 58 does not apply,
there would be no time limit for making such an application
for renewal and it would be possible to make it any time,
even after the expiry of the period of the permit and the
Regional Transport Authority would be bound to consider it.
That surely could never have been the intention of the
Legislature. Moreover, it is implicit in the enactment of
section 68-B that Chapter IV-A is not a self-contained
Chapter to which the other provisions of the Act are inap-
plicable. If Chapter IVA were a self-contained Code by
itself, there would have been no need to give overriding
effect to the provisions in that Chapter as against the
other provisions of the Act. Section 68-F, sub-section (3)
also proceeds on the assumption that, but for its enactment,
an order made by the Regional Transport Authority under
sub-section (1) or sub-section (2) of section 68-F would
have been appealable under section 64 and it was to ex-
clude the applicability of section 64 that sub-section (3 )
of section 68-F was enacted. These two circumstances dearly
point to the conclusion that the other provisions of the
Act, to the extent to which their language warrants, apply
in relation to proceedings under Chapter IVA, save in so far
as they may be, expressly or by reason of repugnance or
inconsistency, overridden. We must, therefore, reject the
first contention of the appellant which seeks to exclude the
applicability of the proviso to sub-section (2) of section
58 to an application for renewal of a permit under the
proviso to subsection (1-D) of section 68-F.
That takes us to the next question as to the applicabil-
ity of section 5 of the Limitation Act, 1963 to an applica-
tion for renewal of a permit. It would be convenient at this
state to refer to the provisions of subsections (2) and (3)
of section 58, which, so far as material, read as follows:
"(2) A permit may be renewed on an application made
570
and disposed of as if it were an application for a
permit:
Provided that the application for the renew,d
of a permit shall be made--
(a) in the case of a stage carriage permit or a
public
carrier’s permit, not less than one hundred
and twenty
days before the date of its expiry; and
(b) in any other case, not less than sixty days
before the date of its expiry:
Provided further that, other conditions being
equal, an application for renewal shall be given
preference over new applications for permits.
(3) Notwithstanding anything contained in the
first proviso to sub-section (2), the Regional
Transport Authority may entertain an application
for the renewal of a permit after the last date
specified in the said proviso for the making of
such an application, if the application is made not
more than fifteen days after the said last date and
is accompanied by the prescribed fee."
The proviso to sub-section (2) requires that an application
for renewal of a permit should be made not less than 120
days before the date of expiry of the permit. But, notwith-
standing this provision, the Regional Transport Authority
may, under sub-section (3), entertain an application for
renewal of a permit after the last date specified in subsec-
tion (2), "if the application is made not more than 15 days
after the said last date and is accompanied by the pre-
scribed fee." Sub-section (3) thus vests a discretion in the
Regional Transport Authority to entertain an application for
renewal of a permit even if it is beyond time, but in that
case the delay should not be of more than fifteen days. The
word used in sub-section (3) is "may" and not "shall" and
the Regional Transport Authority is given a discretion to
entertain ,m application for renewal of a permit even where
it is beyond time, though not more than 15 days. It may
condone the delay or it may not, depending on the circum-
stances of each case. The discretion is be exercised not on
any arbitrary of fanciful grounds or whim or caprice of the
Regional Transport Authority, but it is to be a judicial
discretion. It is true that the criterion which is to
guide the Regional Transport Authority in the exercise of
its discretion is not articulated in sub-section (3), but it
is implicit in every conferment of discretion on a judicial
or quasi-judicial authority that the discretion is to be
exercised in a judicial manner on well settled legal prin-
ciples. would not be right to attribute to the Legislature
an intention to confer unguided and unfettered discretion on
the Regional Transport Authority which is quasi-judicial
authority. The discretion is obviously to be exercised
where sufficient cause for not making the application for
renewal within time is made out by the applicant. This
571
criterion can legitimately be imported from section 5 of the
Limitation Act, 1963 which contains an allied provision for
condonation of delay where an application is made beyond
time. It could never have been the intention of the Legis-
lature that even where there is no sufficient cause for
delay in making an application for renewal, the Regional
Transport Authority should still be bound to entertain the
application for renewal merely, on the ground that the delay
is of not more than 15 days. Sub-section (3) enacts a
provision for condonation of delay in making an application
for renewal and not provision extending the time limit
specified in the proviso to sub-section (2) in all cases as
a matter of course. If the intention of the Legislature
were that in every case delay of not more than 15 days in
making an application for renewal should be condoned as of
course, there was no need for a separate provision in sub-
section (3), but the Legislature could have very specified
"one hundred and five days" instead of "one hundred and
twenty days" in the proviso to sub-section (2).
It is, therefore, dear that sub-section (3) of section
58 confers a discretion on the Regional Transport Authority
to entertain an application for renewal when it is made
beyond the time limit specified in the proviso to sub-sec-
tion (2), but not more than 15 days late and the discretion
is to be exercised in favour of entertaining the application
for renewal when it is shown that there was sufficient cause
for not making it in time. Now the question which arises
is: does section 5 of the Limitation Act, 1963 apply so as
to empower the Regional Transport Authority, for sufficient
cause, to entertain an application for renewal even where it
is delayed by more than 15 days? Section 29, sub-section (2)
of the Limitation Act, 1963 makes section 5 applicable in
the case of an application for renewal unless its applica-
bility can be said to be expressly excluded by any provision
of the Act. The only provision of the Act sought to be
pressed into service for this purpose was sub-section (3).
Does sub-section (3) expressly exclude further extension of
time under section 5 ? If it does, then section 5 cannot be
availed of by the appellant for condonation of the delay.
Sub-section (3) in so many terms says that the Regional
Transport Authority may condone the delay in making of an
application for renewal and entertain it on merits provided
the delay is of not more than 15 days. This clearly means
that if the application for renewal is beyond time by more
than 15 days, the Regional Transport Authority shall not be
entitled to entertain it or in other words, it shall have no
power to condone the delay. There is thus an express
provision in sub-section (3) that delay in making an appli-
cation for renewal shall be condonable only if it is of not
more than 15 days and that expressly excludes the applica-
bility of section 5 in cases where an application for renew-
al is delayed by more than 15 days. This provision may seem
harsh, but it has been deliberately and advisedly made
because the question of renewal of a permit must obviously
be decided before the expiration of the period of the permit
and in view of the elaborate procedure set out in section 57
for dealing with an application for renewal, a certain
minimum period before the expira-
5--1234SCI/76
572
tion of the period of the permit must be provided within
which this procedure can be completed so that the, renewal
can, if at all, be granted well in time before the permit
expires. If an application for renewal could be entertained
even if made at any stage, it would dislocate the procedural
machinery set out in section 57 and that is why the Legisla-
ture prescribed in sub-section (3) of section 58 that the
delay in making an application for renewal may be condoned
by the Regional Transport Authority only if it is of not
more than 15 days. Here, the application made by the appel-
lant for renewal of his permit was admittedly late by more
than 15 days and hence the delay was not condonable and the
Regional Transport Authority was right in rejecting the
application for renewal as time barred.
We must, in the circumstances, dismiss the appeal, but
in view of the peculiar facts of the case we make no order
as to costs.
P.B.R. Appeal dismissed.
573