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

- **Citation:** [1996] Supp. 6 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 1996-09-12
- **Bench:** K. Ramaswamy, B.L. Hansaria, S.B. Majmudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gajraj-singh-etc-v-state-transport-appellate-tribunal-and-ors-etc-15673
- **Pages:** 42

## Headnote

Motor Vehicles Act, 1988: Sections 217(2)(a) & (b) and (4), and 70,
72 and 81.
C
Stage caniage pennit-Granted under repealed Act of 1939-Pennit
valid till commencement of new Act-Pennit renewed under new Act which
came into force on 1.7.1989-Validity of-Saving under S.217(2)(a) or
(b )--<:onditions precedent for applicability of-Held : grant of pennit under
new Act not a vested or accrl(ed right but only a p1ivilege-Provisions of
repealed Act inconsistent with those of new Act as regards renewal-Hence,
D S.217(2)(a) or (b) not attracted-Pennit granted under repealed Act stood
expired on 1. 7.1989 unless application for renewal pending under S.58 of
repealed Act-If no application was pending fresh application must be made
under S.70 of new Act for grant of pennit-S.6 of General Clauses Act
applicable. ·
E
Stage Caniage Pemzit-Renewal-Grant of-Nature-Explained.
Stage Caniage Pennit-Sclzeme approved and published under Chapter
IV-A of repealed Act of 1939-Such pennits held by named private
operators-Scheme continued after commencement of new Act on
F
1.7.1989-Held: Scheme was self-contained and self-operative and law by
itself and saved by S.217(2)(a)-Rights of such named private operators alone
for grant or renewal of their pennits preserved-Such a right was not violative
of Art. 14 on ground of invidious discrimination-Procedure for grant or
renewal of pennit laid down-Motor Vehicles Act, 1939, Ss.68-F(l-D) &
G 68-F( 1-F).
General Clauses Act, 1897 : Section 6.
Repeal of Act-Effect of-Held : Obliterated the Act completely from
record of Parliament as if it never existed except for transactions past and
H closed.
172
'
GATRAJ SINGH v. STATE
173
Repeal of Act-Followed simultaneously by fresh legislation on same A
subject-Held : S.6 would be applicable unless new legislation manifested
contrmy or inconsistell( intention-Hence, Court had to ascerlain such incompatibility from relevant p01tions of new Act.
Inte1pretation of Statutes :
Interpretation-Subsidiary' rnles of-Legal fiction-Meaning and effect
of-Explained.
Administrative Law :
Repealed Act-Right acquired or accrued unde,-..Permit/licence-Grant of renewal of-Held: amounted to fresh grant-Discretion
given by Statute-To be exercised on basis of rules of reason and justice and
not arbitr01ily-Subject to rejection of application for renewal for reasons to
be recorded-Hence, right to renewal of pennit was not a vested or accrued
right but only a privilege-General Clauses Act, 1897, S.6(c).
B
c
D
The appellant was granted a stage carriage permit on the route
under Section 47(3) of the Motor Vehicles Act, 1939 (Repealed Act) for a
period of 3 years. The said permit was renewed under Section 81 of the
Motor Vehicles Act, 1988 (which came into force on 1.7.1989) for a further E
period of 5 years and a second renewal was also granted. The respondents
bad applied under Section 70 of the Act for· grant of stage carriage permits
under Section 72 of the Act on the' route which intersected a part of the
route on which the appellant was operating his stage carriage. Despite
objections raised by the appellant, the State transport Authority (STA)
granted permits to them which were challenged in the revision petition F
filed under Section 90 of the Act before the State Transport Appellate
Tribunal (STAT). The STAT dismissed the revision petition on the ground
that the renewal of the permit granted to the appellant was not valid in
law as the appellant did not get a new permit under the Act. The High
Court dismissed the writ petition filed by the appellant. Hence this appeal. G
On behalf of the appellant it was contended that the renewal of the
permit of the appellant granted under the Repealed Act was a permit
under the Act and its operation was saved by Section 217(2)(a) read with
sub-section (4) thereof and Section 6 of the General Clauses Act, 1897;
therefore, the second renewal of the permit granted under Section 81 of H
174
SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A
the Act which was

## Text

_Characters 0–39,961 of 106,611. This is a partial read: ask again with offset=39961 for what follows._

A
B
GAJRAJ SINGH ETC.
v.
STATE TRANSPORT APPELLATE TRIBUNAL AND ORS. ETC.
SEPTEMBER 12, 1996
[K. RAMASWAMY, B.L. HANSARIA AND S.B. MAJMUDAR, JJ.]
Motor Vehicles Act, 1988: Sections 217(2)(a) & (b) and (4), and 70,
72 and 81.
C
Stage caniage pennit-Granted under repealed Act of 1939-Pennit
valid till commencement of new Act-Pennit renewed under new Act which
came into force on 1.7.1989-Validity of-Saving under S.217(2)(a) or
(b )--<:onditions precedent for applicability of-Held : grant of pennit under
new Act not a vested or accrl(ed right but only a p1ivilege-Provisions of
repealed Act inconsistent with those of new Act as regards renewal-Hence,
D S.217(2)(a) or (b) not attracted-Pennit granted under repealed Act stood
expired on 1. 7.1989 unless application for renewal pending under S.58 of
repealed Act-If no application was pending fresh application must be made
under S.70 of new Act for grant of pennit-S.6 of General Clauses Act
applicable. ·
E
Stage Caniage Pemzit-Renewal-Grant of-Nature-Explained.
Stage Caniage Pennit-Sclzeme approved and published under Chapter
IV-A of repealed Act of 1939-Such pennits held by named private
operators-Scheme continued after commencement of new Act on
F
1.7.1989-Held: Scheme was self-contained and self-operative and law by
itself and saved by S.217(2)(a)-Rights of such named private operators alone
for grant or renewal of their pennits preserved-Such a right was not violative
of Art. 14 on ground of invidious discrimination-Procedure for grant or
renewal of pennit laid down-Motor Vehicles Act, 1939, Ss.68-F(l-D) &
G 68-F( 1-F).
General Clauses Act, 1897 : Section 6.
Repeal of Act-Effect of-Held : Obliterated the Act completely from
record of Parliament as if it never existed except for transactions past and
H closed.
172
'
GATRAJ SINGH v. STATE
173
Repeal of Act-Followed simultaneously by fresh legislation on same A
subject-Held : S.6 would be applicable unless new legislation manifested
contrmy or inconsistell( intention-Hence, Court had to ascerlain such incompatibility from relevant p01tions of new Act.
Inte1pretation of Statutes :
Interpretation-Subsidiary' rnles of-Legal fiction-Meaning and effect
of-Explained.
Administrative Law :
Repealed Act-Right acquired or accrued unde,-..Permit/licence-Grant of renewal of-Held: amounted to fresh grant-Discretion
given by Statute-To be exercised on basis of rules of reason and justice and
not arbitr01ily-Subject to rejection of application for renewal for reasons to
be recorded-Hence, right to renewal of pennit was not a vested or accrued
right but only a privilege-General Clauses Act, 1897, S.6(c).
B
c
D
The appellant was granted a stage carriage permit on the route
under Section 47(3) of the Motor Vehicles Act, 1939 (Repealed Act) for a
period of 3 years. The said permit was renewed under Section 81 of the
Motor Vehicles Act, 1988 (which came into force on 1.7.1989) for a further E
period of 5 years and a second renewal was also granted. The respondents
bad applied under Section 70 of the Act for· grant of stage carriage permits
under Section 72 of the Act on the' route which intersected a part of the
route on which the appellant was operating his stage carriage. Despite
objections raised by the appellant, the State transport Authority (STA)
granted permits to them which were challenged in the revision petition F
filed under Section 90 of the Act before the State Transport Appellate
Tribunal (STAT). The STAT dismissed the revision petition on the ground
that the renewal of the permit granted to the appellant was not valid in
law as the appellant did not get a new permit under the Act. The High
Court dismissed the writ petition filed by the appellant. Hence this appeal. G
On behalf of the appellant it was contended that the renewal of the
permit of the appellant granted under the Repealed Act was a permit
under the Act and its operation was saved by Section 217(2)(a) read with
sub-section (4) thereof and Section 6 of the General Clauses Act, 1897;
therefore, the second renewal of the permit granted under Section 81 of H
174
SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A
the Act which was renewable under Section 68-F(l-D) of Chapter IV-A Qf ,
the Repealed Act was valid in law; that there was no need for the appellant
to obtain a fresh permit under the Act as the renewal was a continuation
of the original permit which was a vested right; that Section 217(2)(b) of
the Act would be applicable only if the permit was inconsistent with the
B provisions of the Act in which case the life of the permit granted under the
Repealed Act got extended for the balance period of the permit; and that
since the appellant was not paid compensation, he was entitled to renewal
of permits as a matter of right.
On behalf of the respondents it was contended that the scheme of
C the Act was inconsistent with the scheme of operation in the Repealed Act;
that the STA or the Regional Transport Authority as the case may be,
would be devoid of power and jurisdiction to grant permit under the act;
that under Section 217(2)(b) of the Act the permit was valid only for the
unexpired period granted under the Repealed Act; that between the dates .
of application for permit and its grant the Act provided for grant of
D temporary permits; that any grant of permit should only be consistent with
the provisions of the Act; and that the Repealed Act continued to remain
in operation in spite of its express repeal by Section 217(1) of the Act.
E
Disposing of the appeal, this Court
HELD: 1.1. Ex abundenti cautela clauses (a) to (e) of Section 217(2)
of the Motor Vehicles Act, 1988 elaborate the enumeration of rights. They
would apply to specific rights given to an individual upon· the happening
of one or other of the events specified in the statute. Section 217(2)(a) of
the Act gives an elongated operation as regards all transactions, which
F
being consistent with the provisions of the Act should be deemed to have
been issued, made, granted, done or taken under the corresponding
provisions of the Act. [198-C-D] ·
1.2. By operation of Section 217(4) of the Act read with Section
217(2), Section 6 of the General Clauses Act, 1897 (GC Act) steps in and
G the proceedings initiated before Motor Vehicles Act, 1939 (the Repealed
Act) was repealed, would be continued and concluded under the Act as if
the Act was not enacted. However, four things would emerge from its
operation. First there must exist a corresponding provision under the Act
pari materia with the Repealed Act; secondly, that the order or permit
H granted must exist and be in operation as on 1.7.1989-the day on which
·-
GAJRAJ SINGHv. STATE
175
the Act had come into force; thirdly, it must not be inconsistent with the A
provisions of the Act; and fourthly some positive acts should have been
done before 1.7.1989 to further secure any right. All the four conditions
should be satisfied as conditions precedent for application of Section 6 of
the GC Act by operation of Section 217(4) and then Section 217(2)(a) steps
in and starts operation thereof. (199-B-G]
B
1.3. This may be angulated from yet another legal perspective, namely, consequences that would flow from the meaning of the word 'renewal'
of a permit under Section 81 of the Act. Grant of renewal is a fresh grant
though it breaths life into the operation of the previous lease or licence
granted as per existing appropriate provisions of the Act, rules of orders C
or acts intra vires or as per the law in operation as on the date of renewal.
Grant of renewal under Section 81 is a discretion given to the State
Transport Authority (STA) or Regional Transport Authority (RTA) sub·
ject to the conditions and the requirement of law. Discretion given by a
statute connotes making a choice between competing considerations ac·
cording to rules of reason and justice and not arbitrary or whim but legal D
and regular. Sections 70 and 71 read with Section 81 of the Act do indicate
that grant of permit or renewal thereof is not a matter of right or course.
It is subject of rejection for reasons to be recorded in support thereof.
Therefore, right to renewal of a permit under Section 81 is not a vested or
accrued right but a privilege to get renewal according to law in operation
and after compliance with the pre-conditions and abiding the law. There
is a distinction between right acquired or accrued, and privilege, hope and
expectation to get a right. A right to apply for renewal and to get a
favourable order would not be deemed to be a right accrued unless some
positive acts are done, before repeal of the Repealed Act or corresponding
law to secure that right of renewal. (199-H; 200-E-H]
Provash Chandra Dalui & Anr. v. Bishwanath Banerjee & Anr., (1989]
Supp. 1. SCC 487; Ambika Quarry Works v. State of Gujarat, (1987] 1 SCC
213; Rural Litigation and Entitlement Kendra v. State of U.P., [1989] Supp.
E
F
1 SCC 504; State of M.P. & Ors. v. Krishnadas Tikaram, [1995] Supp. 1 SCC G
587 and Gujarat Electricity Board v. Shanti/al, AIR (1969) SC 239 relied on.
Black's Law Dictionary, p.1296 and P. Ramanatha Aiyar's "The Law
Lexicon" (Reprint Edition 1987), referred to.
2.1. If no action under the Repealed Act was set in motion before H
176
SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A
1.7.1989, by valid application for renewal of a permit, there was no right ·
acquired or accrued to pursue the remedy untler the Act. The privilege to
obtain renewal of a permit is not an accrued right. Section 58(2) of the
Repealed Act gives, as stated supra, preferential right to a holder of a
permit for renewal thereof. Section 71 of the Act gives preferential right in
B
favour of State Transport Undertaking (STU) for grant of permit in
Chapter V which is not available under the Repealed Act. Therefore, even
for grant of a permit or a renewal under Section 72 or 81, the STU is
entitled to preferential right over the private citizens .. Thereby, the Act
manifests intention inconsistent with and incompatible to that in Chapter
c
IV of the Repealed Act. Similarly, even on the approved routes under a
Scheme framed in Chapter IV-A, an execution has been carved out in the
scheme with a non-obstante clause in favour of STU, which is a self-operative law by itself. The rights of the existing operators for renewal thereof ,
under Section 68F(ID) under the Repealed Act were saved. But, under the
Act, Chapter VI does not speak of renewal of the permits to the private
D
operators, though permits were saved in the scheme itself. Chapter VI
manifested inconsistency in its operation from the law in Chapter IV A of
the Repealed Act. Similarly, other provisions are inconsistent with those
in the Repealed Act. Therefore, Section 217(2)(a) would not get attracted,
even if it were to apply to grant of permit being a "thing done" as contended
E
by the appellant. Let it be said that a permit is preceded by an order
granting permit by the concerned RTA or STA, as the case may be, under
the Repealed Act. The said order stands merged with the grant of permit
and gets exhausted. [202-C-H]
p
2.2. By operations of Section 217(2)(b) of the Act a permit granted
under the Repealed Act shall continue to have the same operation under
the Act under the same terms and conditions and for the same period, as
if the Repealed Act was in operation and as if the Act had not been passed.
This is the fiction of law by which, though the Repealed Act was wiped out,
its operation gets revived. The intention, thereby, appears to be that the
G Act breaths life into the dead permits etc •. and allows full play to the
permits granted under the Repealed Act, even if inconsistent, till their ·
period expired by eftlux of time. Any other view would tantamount to
allowing the Repealed Act to remain in operation in perpetuity simultaneously with the operation of the Act. Both cannot co-exist in the same
H shelter. [203-A]
GAJRAJ SINGH v. STA TF
177
State of Punjab v. Mohar Singh, (1955] 1 SCR 893 and Universal A
Imp01ts Agency & Anr. v. The Chief Controller of Imports and Exports & Ors.,
[1961) 1 SCR 305, held inapplicable.
D. Nataraja Mudaliar v. The State Transport Auth01ity, Madras, [1978]
4 sec 290, referred to.
B
2.3. It must, therefore, be held that grant of renewal of the stage
carriage permit should necessarily be preceded by a grant of a permit to
stage carriage under Section 72, in accordance with the procedure laid
down in Sections 70 and 71. This should be made before the expiry of the
period prescribed in the permit granted under the Repealed act. Therefore, C
for stage carriage permits granted under Chapter IV of the Repealed Act,
if they stand to expire or expired after 1-7-1989 without any pending application for renewal having been made under Section 58 as on 1-7-1989,
fresh applications under Section 70 should be filed and after consideration
under Section 71, permits be obtained as per law under Section 72. If there
is any delay to obtain permits pending consideration, by operation of D
providing stage carriage service, Section 87 gives power to grant temporary
permit without following the procedure laid down in Section 70. The argument of arbitrariness, discrimination or avoidable inconvenience to the
holders of permits etc. under the Repealed Act and to the travelling public
would be hypothetical and without force. [203-H; 204-A-D]
E
Mithilesh Garg & Ors. v. Union of India & Ors., [1992] 1 SCC 168,
relied on.
3.1. Section 68F (lD) and Section 68F (lF) of the Repealed Act had
prescribed that renewal of the p,ermits granted to the private operators and F
STU should be renewed under the scheme; similar provision does not find
place in Chapter VI of the Act. Rules do prescribe procedure to apply for
renewal by the private operators as well as STU but the rules or procedure
do not confer substantive right to renewal of the permits granted under the
scheme; when Chapter VI is Sub silentio, rules cannot travel beyond the Act. G
[205-C-DJ
3.2. However, the approved scheme under the Repealed act or in the
Act is a self-contained and self-operated scheme. It is a law by itself. The
schemes published under the Repealed Act are saved by Section 217(2)(a)
of the Act. Therefore, until they are modified or cancelled under Section H
A
B
c
178
SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
102, the scheme should continue to be in operation in the notified area,
route or part thereof. The right to apply for and obtain permit in the
notified scheme was totally frozen to the private operators giving exclusive
right to the STU to apply for and obtain permits to run the stage carriages
or additional service under Section 101 of the Act on the notified area,
route or a part thereof and none else. With a non-obstante clause in Section
101, the right to apply for and obtain temporary permits under Section 87
by private operators was taken away. There is no need for STU to obtain
such permits, as an intimation to concerned RTA of its providing such
additional service on special occasions like fair or religious gatherings for
conveyance of passangers, is sufficient. Yet the scheme itself saved and
preserved the rights of the named existing operators in respect of overlapping routes in the specified permits, subject to the corridor restrictions of
picking up and setting down the passengers en route the prescribed
prohibited route. They became entitled to run their stage carriages subject
to the law. Though,. their permits are saved, the named operators being
D private operators, the Parliament appear to have thought that there was
no necessity to expressly retain in Chapter VI itself their right of renewal
as the same was already provided in Section 81 of the Act corresponding
to Section 68F(1D) of Chapter IV-A of the Repealed Act. There is no
express indication of their rights being taken away under the Act; nor it is
so by necessary implication. [206-G-H; 207-A-F]
E
33. Thus the rights of the existing named operators saved in the
appropriate approved schemes in respect of specified permits were not
desti::oyed. By necessary implication of Section 104, they were saved. they
became entitled to avail of their right to apply for grant of permit in
F
accordance with the procedure prescribed under Sections 70 and 71 and
to obtain permit under Section 72, before the expiry of the permit or
renewed permit saved under the approved scheme and should obtain
permit afresh to ply their stage carriages before expiry of the period
mentioned therein; periodical renewals from time to time should be
obtained under Section 81 of the Act in accordance with the operation of
G the law. The RTA or STA, as the case may be, should consider and may
grant permits or renewal of permits as per law or rejection thereof for
reasons to be recorded in that behalf. [209-H; 210-A-C]
Krishan Kumar v. State of Rajasthan & Ors., [1991) 4 SCC 258, relied
H on.
GAJl~I SINGH v. STATE
179
3.4. The contention that such a construction creates and brings A
about invidious discrimination offending Article 14 of the Constitution is
without force. Section 217(2)(a) read with Section 217(4) of the Act
manifest the distinction between acts done or actions taken consistent with
the provisions of the repealed Act but inconsistent with the Act. The Act
saves only acts done or actio(\S taken etc. which are consistent with the
provisions. By implication, all inconsistent acts done or actions taken,
except those c.ompleted and closed, would not be considered to be done or
taken under the Act and consequently could not be operative under the
Act. They are obliterated completely from statute as if they never existed
except to the extent of limited operation provided in the appropriate
clauses in Section 217(2) of the Act. (211-D-E-F]
B
c
3.5. Acco~dingly, the na11:1ed transport operators whose permits were
saved in the relevant scheme shall apply for permits under Sections 70 and
71 and obtain permits afresh under Section 72 of the Act before the expiry
of the period mentioned in the permit issued either under Section 47 or D
Section 48 or renewal under Section 58 or Section 68F (lD) of the Repealed
Act. No third party/private operators are entitled to apply for permits on
the same notified route or part thereof, nor are they entitled to compete
with them for grant of permit, since the right of all other private operators
to apply for and operate in the approved notified area, route or a part E
thereof, has been frozen. The right is reserved only in relation to the named
operators and that too for specified permit, and none else. Along with the
application under Section 70 filed for grant of permit under Section 72 or
renewal under Section 81 made by the named holder of a specified permit
in an approved scheme, he should enclose an authenticated copy of the
approved scheme, the details of the route on which he was plying his stage
F
carriage with corridor restrictions on over lapping routes. the RTA or STA,
as the case may be, should verify the original scheme under which the
named operator, whose specified permit was saved, whether he is entitled
to ply the stage carriage in the approved scheme with the condition of the
corridor restrictions on the notified scheme and if so to what extent. What G
is the dura~ion of his right~saved in the approved scheme? Whether he had
plied his stage carriage on complying with the law in force? His right to
permit under Section 72 or renewal under Section 81 cannot be higher than
the original right saved in the approved scheme. The STU also should be
heard in that behalf, in 1·elation to grant of stage carriage permit or renewal
thereof, the appropriate authority may grant or reject; in the latter event, H
A
B
180
SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
for reasons to be recorded in support of the rejection. The authorities
should consider their applications in accordance with the law and the
prescribed procedure and may grant new permits under section 72 and
later on before the ex11iry thereof, to renew it in accordance with the procedure prescribed in Sections 80 and 81, that too, on compliance with law,
until the scheme is duly modified or cancelled in accordance with law. This
right is available exclusively to the named private operators and that too
in respect of the specified permits and with same restrictions continued in
the scheme and none else and no more. [211-H; 212-A-E]
3.6. Since the appellants had obtained permits by mistake of the law
C and misconception of law on the part of the competent authorities applied
under Section 81 and had been granted renewal of their respective permits
under Section 81 after· t.7.1989, such grant of renewal of the permits
should be treated to be temporary permits under Section 87 of the Act.
Therefore, the private operators, be they covered by Chapter V or VI,
should apply for and obtain afresh permits before the expiry of the period
D
mentioned in their respective permits or renewed for consideration under
Section 71 and grant under Section 72 of the permits afresh consistently
with Section 2(31~ of the Act. Such permit alone would be a permit defined
in Section 2(31)ofthe Act. Therefore, before expiry thereof, they shall apply
for and the concerned STNRTA may grant or refuse renewals of permit
E
for reasons to be recorded under Section 81 of the Act. [212-F-H; 213-A]
Secreta1y, Qui/on Distt. Motor Transp01t Workers' Cooperative Society
Ltd. v. Regi-onal Transp01t Auth01ity & Ors., [1994) Supp. 3 SCC 210, affirmed.
F
M/s. Gurcharan Singh Baldev Singh v. Yashwant Singh & Ors., [1992)
sec 428, held inapplicable.
Mysore State Road Transp01t Co1poration v. Mysore State Transpo1t
Appellate T1ibunal, [1974) 2 SCC 750; Adarash Travels Bus Se1vice &Anr. v.
G State of U.P. & Ors., [1985) 4 SCC 557; T.V. Nataraj & 01:f. v. State of
Kamataka & Ors., [19941. 2 SCC 32; Ram Krishna Venna & Ors. v. State of
U.P. & Ors., [1992] 2 SCC 620 and Nisar Ahmad & Ors. v. State of U.P. &
Ors., [1994] Supp. 3 SCC 640, referred to ..
4.1. Whenever an Act is repealed it must be considered, except as to
H transactions past and closed, as if it had never Existed. The effect thereof
GAJRAJ SINGH v. STATE
181
is to obliterate the Act completely from the record of the Parliament as if A
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. Repeal is not a matter of mere form but is of substance
de11ending on the intention of the Legislature. If the intention indicated
either expressly or by necessary implication in the subsequent statute was
B
to abrogate or wipe off the former enactment wholly or in part, then it
would be a case of total or pro tanto repeal. [193-B-C]
India Tobacco Co. Ltd. v. The Commercial Tax Office1; Bhavanipore
& Ors., [1975] 3 SCC 512, relied on.
c
4.2. When there is a repeal and simultaneous re-enactment, Section
6 of the GC Act 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 D
have to look to the provisions of the new act only for the purpose of
determining whether the new Act indicates different intention. The object
of repeal and re-enactment is to obliterate the Repealed Act and to get rid
of certain obsolete matters. [193-D-E]
Bishambhar Nath Kohli & Ors. v. State of U.P. & Ors., AIR (1966) SC
573, relied on.
Crawford's Inte1pretation of Law (1989), pp. 626, 627, 657; G.P. Singh:
"P1inciples of Statuto1y Inte1pretation", (Sixth Edn.), 1996, pp. 413, 418;
Jagdish Swamp : "Legislation and Inte1pretation ", (1974) Edn.), p. 539;
Maxwell On the Inte1pretation of Statutes, (12th. Edn.) p. 17; Sutherland
Statuto1y Construction", (3rd. Edn.) Vol. 1 paras 2043 to 2045; Francis
Benion's Statutory Inte1pretatio11, (Second Edn.) p. 210 and Randall: "Cardinal Rules of Legal Interpretation", (3rd. Edn.), A.E., 1924, pp. 531-32,
referred to.
Brown v. Mc. Lachian, (1872), LR. 4 PC 543; In re Busfield, (1886) 32
Ch. D 123; Hume v. Some1ton, (1890) 25 QBD 239 and In re R., (1906) 1
Ch. 730, cited.
E
F
G
5. Legal fiction is one which is not an actual reality and which the H
182
SUllREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A
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
B
c
D
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circumstances. [192-C-D]
CIVIL APPELLATE/ORIQINAL JURISDICTION: Civil Appeal
No. 2003 of 1996 Etc.
From the Judgment and Order dated 13.10.95 of the Allahabad High
Court in C.W.P. No. 26132 of 1995.
H.N. Salve, S.K. Dhaon, Rani Chhabra, V.P. Gupta, S.C. Garg,
Rachna Srivastava, Abha Jain, Gaurav Jain, Vijay K. Mehta, Ms. Nirmala
Gupta, Pramod Swarup, Anil Karnwal, Krishan Singh Chauhan, A.K. Goel
for the appearing parties.
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
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
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( 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 operating his stage carriage. Despite objections raised by the appellant, the State
Transport Authority (for short, 'STA') granted permits to them on November 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
dated October 13, 1995 made in Writ Petition No. 26132of1995 has upheld
the order of the STAT. Thus, this appeal by special leave.
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Shri K.K. Venugopal, learned senior counsel for the appellant, contended 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. Yashwant 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 F
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 G
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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SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
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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
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granted under the Repealed Act. The need for fresh permit arises only if
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
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.
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 operation of the Act with the provisions of the Repealed Act, the STA or the
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
G 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. Otherwise, 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
' .
GATRAJ SINGH v. STATE [K RAMASWAMY, J.]
185
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
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VI of the Act. Chapter V does not apply to them. Therefore, they have no C
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 misapD
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
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
a pennit issued by the State or Regional Tra11sp01t Auth01ity or an a11tlz01ity
presC1ibed in this behalf under the Act (emphasis supplied) authorising the
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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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SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.
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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 definitions similarly had found place in the Repealed Act with slight variations.
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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
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 application 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 procedure for ·sT A or RT A 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
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
G applications for permits from (1) State transport undertakings; (ii) cooperative 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,
H except town service, no restrictions are imposed unlike in Section 47{3) of
GAJRAJ SINGH v. STATE [K RAMASWAMY, J.]
187
the Repealed Act to grant stage carriage permits. Section 72 empowers the A
RTA or ST A 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 B
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 C
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 amendment 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 November 14, 1994 and the above prohibition no longer operates.
Section 81 regulates renewal of permits and duration thereof. Subsection (1) visualises that a permit, other than a temporary permit issued
under Section 87 or special permit issued under Section 88(8), shall be E
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 F
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.