U.P STATE ROAD TRANSPORT CORPN.versusMOHD. GHILMAN SHARIF & OTHERS.

                          [2009) 10 S.C.R. 1149
..
               U.P. STATE ROAD TRANSPORT CORPN.                         A
                                     V.
                 MOHD. GHILMAN SHARIF & OTHERS.
                   (Civil Appeal No. 4555 of 2009)

                              JULY 20, 2009
                                                                        B
            [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

              Motor Vehicles Act, 1939/Motor Vehicles Act, 1988 - s.
         68-C!ss. 100(3) and 105 - Scheme of nationalization by State
         Transport Department - Exclusive right of operation to State C
        Road Transport Corporation on notified routes and total
        exclusion of private operators by canceling their permits -
        Publication of Notification - Challenge to, by private operators
        - Dismissal of writ petition, however, special leave petition
        allowed - On remittance, hearing authority holding that D
        existing operators to ply on route along with Corporation - Writ
        petition by Corporation - Meanwhile, renewal of permits of
        private operators by State Transport Appellate Tribunal but
        subject to decision in writ petition - Disposal of writ petition
      . in favour of Corporation, holding that private operators who E
        were granted permit before publication of Scheme entitled to
        compensation - On appeal, held: Private operators not to be
     . given further hearing regarding their claim to operate on
       notified routes On-basis of permits - Private operators to claim
       compensation uls. 105 of the 1988 Act.                            F

          Ramakrishna Verma vs. State of U.P. 1992 (2) SCC 620;
      A.P. State Road Transport Corporation vs. Regional
      Transport Authority and Anr. 2005,(4) SCC 391, referred to;

                            Case Law Reference:                        G
           1992 (2) sec s20               Referred to.      Para 4
           2005 (4)   sec 391             Referred to.      Para 14

                                   1149                                 H
    1150       SUPREME COURT REPORTS [2009) 10 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4555 of 2009.

        From the Judgment & Order dated 14.11.2008 of the High
  Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
B 479.t19 of 2008.

                                 WITH

    C.A. No. 4556, 4557 of 2009.

C        Dushyant A. Dave, Shobha Dixit, Ranjit Kumar, Garima
    Prashad, Neha Goyal, Suchita Sharma, R.K. Gupta, Rajiv
    Dubey, Kamlendra Mishra, Rani Chhabra, Lalita Choudhary,
    Simran, Suresh Chadha, Madhuri Gupta for the appearing
    parties.

D       The Judgment of the Court was delivered by

        ALTAMAS KABIR, J. 1. Leave granted.

        2. This appeal has been filed against the judgment and
  order dated 14.11.2008 passed by the Allahabad High Court
E in Civil Misc. W.P. No.47949 of 2008 filed by the Respondent
  Nos. 1 and 2 herein, inter alia, for the issuance of a Writ in the
  nature Mandamus upon the Transport Department of the State
  of U.P. and its authorities to allow the writ petitioners/
  Respondent Nos.1 and 2 herein, to ply their vehicles against
F subsisting permits on the route between Muzaffarnagar-
  Rohana-Deoband-Nagal-Saharanpur and allied routes. By the
  said order, the High Court disposed of the writ petition with a
  direction to the State Transport Authority to decide as to
  whether the permit of the Respondent No.1 was subsisting and
G if the same was found to be subsisting the respondents would
  not be prevented from plying their vehicles on the route in
  question. The matter was to be decided by a speaking order.

     3. The facts in brief indicate that the Respondent No.1
H Mohd. Gilman Sharif and Mohd. Ruman Sharif, claimed to be
                                                                       -
      U.P. STATE ROAD TRANSPORT CORPN. v. MOHD.1151
       GHILMAN SHARIF & ORS. [ALTAMAS KABIR, J.)

     joint permit holders in respect of the aforesaid route. The           A
     second petitioner, Vined Kumar, claims to have had a permit
     in respect of the said route which had expired and his
     application for renewal of the same is said to be pending.

          4. On 13.2.1986 a Scheme was proposed to notify 38
                                                                           8
     routes under Section 68-C of the Motor Vehicles Act, 1939
     (hereinafter referred to as 'the 1939 Act'), which would have
     the effect of totally excluding all private operators from the said
     routes. While Clause (h) of Section 68-C provides for
     cancellation of permits granted to private operators upon such
     Notification, Clause 0) provides for grant of compensation if no      C
     alternative route could be given to the permit holders. Various
     objections were filed by the existing operators to the said
     proposal and in the mean time on 1.7.1989 the Motor Vehicles
•.
     Act, 1988 (hereinafter referred to as 'the 1988 Act') came into
     force and the proposed Scheme continued for consideration             D
     under the provisions of the 1988 Act. The objections Vfere
     considered by the Hearing Authority which held that the Scheme
     had lapsed under Section 100(4) of the 1988 Act. The order
     of the Hearing Authority was confirmed by the High Court on
     16.3.1990. The said view of the High Court was reversed by            E
     this Court in Ramkrishna Verma vs. State of U.P. [(1992) 2
     SCC 620] upon the finding that the Scheme had not lapsed and
     that the same was required to be finalized.

          5. On 29.5.1993 a Notification was published under F
     Section 100(3) of the 1988 Act finalizing the Scheme of
     nationalization with exclusive right of operation to the appellant
     Corporation and total exclusion of private operators. The said
     Notification was again challenged in several writ petitions which
     were dismissed by the High Court on 19.11.1999. The various G
     Special Leave Petitions which were filed against such dismissal
     order were allowed by this Court on 1.5.2001 and the matter
     was remanded to the Hearing Authority to consider the
     objections which had been filed by the private operators and
     which were under consideration when the impugned Notification
                                                                        H
    1152       SUPREME COURT REPORTS [2009] 10 S.C.R.


A dated 29.5.1993 had been issued. The Hearing Authority by
  its order dated 2.11.2001 allowed the existing operators, such
  as the Respondent Nos. 1 and 2, to ply on the routes in
  question along with the Corporation.

        6. The order was again questioned by the Corporation by
8
  filing Writ Petition No.9332 of 2002 in the High Court and the
  same was dismissed on 23.7.2002 with the High Court holding
  that the Scheme had lapsed. The said order of the High Court
  was also challenged before this Court by the appellant
  Corporation as well as the private operators. Such challenge
C was upheld on 29.11.2004 and the matters were remanded to
  the High Court for re-hearing of Writ Petition No.9332 of 2002
  filed by the appellant Corporation.

        7. While Writ Petition No. 9332 of 2002 was still to be
o heard, the applications for renewal of the permits of the private
  operators came up for consideration before the State Transport
  Authority which by its order dated 9.6.2005 declined to renew
  the permits on account of the pendency of the said Writ Petition
  before the High Court. Against such refusal, revision petitions
E were filed before the State Transport Appellate Tribunal which
  directed the permits to be renewed subject to the fate of Writ
  Petition 9332 of 2002. Consequently, on 20.1.2006 the permits
  were renewed subject to the said condition.

        8. On 1.6.2007 the High Court allowed the Writ Petition
F and set aside the orders passed by the Hearing Authority
  holding that permit holders who were granted permits prior to
  1986 were entitled to get compensation according to the
  provisions of the Motor Vehicles Act, 1988. The Special Leave
  Petitions filed against the said order were dismissed by this
G Court on 16.7.2007.

       9. While the Special Leave Petition against the order of
  the High Court dated 1.6.2007 allowing Writ Petition No.9332
  of 2002 was pending hearing, the State Transport Authority on
H 26.6.2007 prevented the private operators from operating on
      U.P. STATE ROAD TRANSPORT CORPN. v. MOHD. 1153
       GHILMAN SHARIF & ORS. [ALTAMAS KABIR, J.]

     the routes in question. After the Special Leave Petition was A
     dismissed on 16.7.2007 the Government took a decision on
     9.8.2007 to allow private operators to operate on the routes in
     question along with the appellant Corporation. On 28.3.2008
     the State Government issued a final Notification allowing private
     operators to operate on the notified route in question along with B
     the appellant-Corporation. The said Notification dated
     28.3.2008 was challenged by the U.P. Roadways Karamchari
     Union in W.P. No.398 of 2008 and the Lucknow Bench of the
     Allahabad High Court by its order dated 7.5.2008, restrained
     the authority from issuing permits on the notified routes. The c
     private respondents also filed W.P. No.47949 of 2008 in the
     High Court for a direction upon the respondent Authority to allow
     them to ply on the routes in question on the strength of the
     permits held by them as no action had been taken either under
     the Scheme or in terms of Section 103 of the 1988 Act or even D
     under Sections 104 and 105 thereof. The said Writ Petition
     No.47949 of 2008 was allowed by the High Court on
     14.11.2008 and the' State Transport Authority was directed to
     consider the applications filed by the respondents in the light
     of the Notification dated 28.3.2008 by which private operators E
     had been permitted to operate on the routes in question along
,.   with the appellant-Corporation.

         10. It is against the said order of remand that the present
     appeal has been filed by the U.P. State Road Transport
     Corporation.                                                      F

           11. Mr. Dushyant Dave, learned senior counsel appearing
     for the appellant-Corporation, while narrating the above-
     mentioned facts confined his submissions to the issue
     regarding renewal of the permits upon the orders of the State G
     Transport Appellate Tribunal, subject to the decision in Writ
     Petition No.9332 of 2002. The said Writ Petition was, in fact,
     disposed of by the Allahabad High Court on 1.6.2007 in favour
     of the appellant Corporation upon negating the stand that tne
     Corporation was not in a position to cater to the needs of the H
    1154        SUPREME COURT REPORTS [2009] 10 S.C.R.


A   travelling public on account of suffering huge losses and
    insufficient number of buses which disabled them from providing
    sufficient, adequate, economical and properly coordinated
    transport service to the travelling public. Mr. Dave pointed out
    that the order of the Hearing Authority in so far as it modified
B   the approved Scheme dated 29.5.1993, could not be
    sustained, and was set aside by the High Court. Mr. Dave also
    pointed out that while disposing of the said writ petition the
    High Court had categorically held that permit holders who had
    been granted permit before 13.2.1986 i.e., before the date of
C   publication of the Scheme, whose permits were going to be
    affected by the approved Scheme on 29.5.1993, were only
    entitled to compensation in terms of the provisions of the Act.

         12. Mr. Dave submitted that after such decision there was
    no scope for the private operators, including the Respondent
D   Nos.1 and 2 herein, to be given any further opportunity of
    hearing regarding their claim to operate on the route in question
    on the basis of their permits which had been cancelled.

         13. Mr. Ranjit Kumar, learned senior counsel appearing for
E   Respondent Nos. 1 and 2, submitted that all that the said
    respondents wanted was an opportunity to place their
    respective cases before the State Transport Authority in order
    to establish their eligibility on the strength of the permits issued
    to them earlier to operate on the routes in question. Mr. Ranjit
F   Kumar urged that the permits issued to the respondents did not
    stand cancelled as per the procedure under Section 103(2) of
    the 1988 Act, but merely became inoperative.

          14. He also urged that after a survey conducted in June
    2007, the State Transport Authority had arrived at a conclusion
G   that the appellant-Corporation was not in a position to provide
    appropriate service on the notified routes which caused the
    State Government to issue a Notification on 12.12.2007
    proposing to modify the exclusive Scheme in terms of section
    102 of the 1988 Act. It was urged that even on a notified route,
H   when a notified operator was unable to provide adequate
      U.P. STATE ROAD TRAN$PORT CORPN. v. MOHD. 1155
       GHILMAN SHARIF & ORS. [ALTAMAS KABIR, J.]

     service, the State Transport Authority and the State Government      A
     were vested with powers under Section 102 of th\J 1988 Act
     to modify the Scheme. Mr. Ranjit Kumar referred to the
     Constitution Bench decision of this Court in A.P. State Road
     Transport Corporation vs. Regional Transport Authority and
     another [(2005) 4 sec 391] wherein, while considering a B
     similar question it was held that it was for the State Government
     to consider what is suitable for public service. The State
     Government has the power to modify the Scheme in case of a
          .
     need since the Scheme is after all intended for the benefit of
     the public and if any step was required to be taken in that
                                                                          c
     regard the State Government could always do so by modifying
     the Scheme.

          15. We are afraid, we are unable to agree with Mr. Ranjit
     Kumar on the question of further hearing to be given to
•    Respondent Nos. 1 and 2 on their claim to be allowed to              D;
     operate on the notified routes in question on the basis of the
     permits which according to the said respondents were dormant
     and were capable of being reviewed in the existing
     circumstances.
                                                                          E
           16. As we have indicated earlier, the permits of the private
..   operators on the said routes were renewed by. the State
     Transport Appellate Authority by its order dated 20.1.2006
     which made it very clear that such renewal would be subject to
     the fate of W.P. No.9332 of 2002. The said writ petition was
                                                                          F
     disposed of on 1.6.2007 by the Allahabad High Court and the
     said judgment has been reported in 2001 Vol. 5 ALJ at page
     255. fl.Jter considering the entire matter in detail, the Division
     Bench of the High Court has allowed the said writ application
     filed by the appellant-Corporation and has negated the
                                                                          G
}
     contentions of the private operators who, it was held, were only
     entitled to compensation in terms of the provisions of the 1988
     Act.

          17. In that view of the matter, the present appeal has to
     be allowed. The directions given by the High Court in Civil Misc.    H
    1156         SUPREME COURT REPORTS (2009] 10 S.C.R.


A Writ Petition No. 47949 of 2008 are hereby set aside and the
  prayer made by Respondent Nos. 1 and 2 herein for being
  given a hearing to establish their claims is also refused. This
  will not, however, prevent the said respondents from claiming
  compensation under Section 105 of the Motor Vehicles Act,
B 1988.
           18. The appeal is accordingly allowed in the above terms.

           19. There will, however, be no order as to costs.

c CIVIL APPEAL NOs. 4556, 4557 OF 2009
    (@ S.L.P.(C)Nos.520 of 2009 and 783 of 2009)

       20. In view of the aforesaid, leave is also granted in these
  two special leave petitions, which are also allowed and
D .disposed of accordingly.

    N.J.                                      Appeals disposed of.