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2003 (7) TMI 724
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....e order dated 2-7-2003 the matter has come up before this Bench. 3. The necessary facts for the disposal of this reference are as follows: One R. Maheshwari, who filed W.P. Nos. 43544/99 and 43601-603/99, is a holder of permit bearing No. 33/64 operating on the route from Thirupathi to Bangalore and back performing one round trip per day, countersigned by the State Transport Authority, Bangalore (for short 'KSTA') on single point tax and is a saved operator under the Kolar Pocket Scheme. The said petitioner sought for variation of the condition of the permit by way of grant of one more round with inclusion of one more vehicle. The said variation was granted by the State Transport Authority, Andhra Pradesh, (for short 'STA, AP') subject to the condition that counter-signature was obtained by the KSTA on double point tax. The permit was originally valid up to 15-5-1987, which was subsequently renewed up to 15-5-1992 and thereafter up to 15-5-1997. The STA, AP under Rule 174(1) of the Rules replaced the permits and the permit was renewed from 16-5-1997 to 15-5-2002, which was counter-singed by the KSTA by its order dated 5-3-1999 on double point tax and the....
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....atter was posted for hearing along with W. A. Nos. 4828-30/2001 in February, 2002. Thereafter, the matter was adjourned to 11-4-2002 and 10-6-2002, on which date this Court directed the Registry to list all the identical cases. On 18-7-2002, this Court found that S.L.P. (Civil) Nos. 22508-12/2001 filed by Maheswari challenging stay order of this Court dated 28-11-2001 was rejected by the Supreme Court on 10-1-2002, and it was ordered to list the appeals for final hearing in the first week of September, 2002. However, the Division Bench by its order dated 6-1-2003, referred the matter to be placed before the Full Bench, which has come up before us, as stated. 5. The undisputed facts in these matters, which pertain to grant of variation of stage carriage permit under Section 80(3) of the Motor Vehicles Act, 1988, (for short 'the Act') are: The Kolar Scheme of Nationalisation and the Bellary Scheme of Nationalisation were approved with saving clause, by orders dated 10-1-1968 and 18-4-1964 respectively. On 10-1-1980, the above schemes were modi-fied introducing prohibitive clause, the relevant portion of which reads as follows: "The State Transport Undertaking will....
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....ble only to saved operators but they were required to file an application not under the 1939 Act, but under the 1988 Act, Learned counsel also brought to the notice a decision of the Apex Court holding that Kolar Scheme is a scheme for total exclusion and no permit could be granted to private operators on the notified route or portion thereof. The Apex Court in CA No. 7371/1996 affirmed the order dated 29-5-1990 in W. A. No. 2230/1985 setting aside the grant of variation made in favour of saved operator. 7. In the instant, case, admittedly, the notification dated 10-1-1968 approved the Kolar Pocket Scheme. The appendix thereto specifies the route in relation to which the scheme is approved, the maximum and minimum number of vehicles to be operated and daily service on such routes by State Transport Undertaking. At Sl. No. 2 of the Appendix on Bangalore-Tayalur route, the maximum and minimum number of vehicles to be operated is 3 and 1, and the maximum and minimum number of daily services is 3 and 1; at Sl. No. 38 on Kolar Gowribidanur route, it is 2:1 and 2:1; at Sl. No. 64, on Chintamani-Royalpad route, it is 2:1 and 4:1 and at Sl. No. 65 on Chitamani-Venkatagirikota, it is 3:1....
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....learned counsel for the parties, perused the materials on record and the case law. 12. It will be appropriate to consider the decision in Balashyam Singh's case. The petitioner initially filed W.P. No. 25353/2001 challenging the order of the Karnataka State Transport Authority rejecting the grant of variation of condition of permit and also the inclusion of one more vehicle in the permit, and the writ petition was rejected vide order dated 28-6-2002. The same was challenged before the Division Bench in W. A. 4163/ 2002, on the ground the appellant was entitled to get the benefit of the saving clause and relied on Gajraj Singh's case (supra). The Division Bench, on consideration, vide order dated 19-8-2002, dismissed the writ appeal observing: "A bare reading of the saving clause reveals that the Scheme has saved the right of the existing operator, but it cannot be extended to consider the additional vehicles or to give additional trips or to revise the time taken and therefore, the order of the KSTAT cannot, be said to be wrong and the learned single Judge has rightly not interfered with the order of the KSTAT." In this case, the State of Andhra Pradesh....
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....Carriage Permits by increasing the number of trips operated (with or without the increase of the number of vehicles covered by the stage carriage permit) overlapping the notified routes of Kolar Pocket Scheme after its modification on 10-1-1980 and (2) Whether the Transport Authority has power to grant variation of the conditions of the inter-State stage carriage permits by increasing the number of trips operated (with or without the increase of number of vehicles covered by the stage carriage permit) overlapping the notified routes of the Kolar Pocket Scheme beyond the maximum provided in any inter State agreement. And observed that the Division Bench examined these two aspects at length, negatived both and dismissed the writ petitions. Considering the judgment of the Constitution Bench in Adarsh Travels Bus Service v. State of U.P., the Apex Court held: "Once a scheme under the Motor Vehicles Act came into operation no person other than the State Transport Undertaking could operate in the notified area or the notified routes except as provided in the route itself. He also sought support from the said decision for his contention that after the scheme, private ope....
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....g the number of trips in fact amounts to granting of a fresh permit to run one more stage carriage service doing one round trip on the notified route and that would be in violation of the scheme itself because the scheme protects only the number of trips which were being operated at the time of its publication." Further, the Apex Court observed: "Our attention is, however, drawn to another decision of this Court in KSRTC, Bangalore v. B. A. Jayaram, wherein the Division Bench held that Section 57(8) does not create a legal fiction and grant of an application for variation in the conditions of one existing permit in respect of matters set out in Section 57(8) does not result in the grant of new permit in every case. With great respect to the learned Judges who decided the said case we feel that the said opinion is erroneous because the increase in the number of trips of vehicles which were being run under the existing permit does amount to grant of a new permit to operate one more stage carriage. Such a thing could not be permitted particularly in view of the decision in Adarsh Travel's case (supra). The construction on the statute placed by the decision of thi....
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....y filed C. A. No. 7371/1996, which was dismissed on 16-1-2003 and in this way the question referred has already been answered and the controversy has been set at rest. In that case, an application for variation of the conditions of permit by granting one more additional return trip on the inter-State route was made, which was opposed by the Corporation. The Karnataka State Transport Authority overruling the objection granted one more additional return trip on the inter-State route. An Appeal was filed by the Corporation, which was dismissed. Thereafter the Corporation filed a writ petition and the learned single Judge while dismissing the petition observed that appellant shall not pick up or set down passengers between the notified portions of the inter-State route, and also pay taxes. The Corporation filed a writ appeal against that order which was allowed. The matter went to the Supreme Court and it was held that there was no scope for further grant of an additional return trip, and that the appellant could not have been granted variation in permits by granting additional return trip on the inter-State route, and accordingly dismissed the appeal. 20-21. It will be appropriate ....