# MOHD. ASHFAQ v. STATE TRANSPORT APPELLATE TRIBUNAL U.P. AND ORS: September 10, 197 6

- **Citation:** [1977] 1 S.C.R. 563
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Case number:** Civil Appeal No. 871 of 1974
- **Bench:** P. N. Bhagwati, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-ashfaq-v-state-transport-appellate-tribunal-u-p-and-ors-september-10-197-6-6953
- **Pages:** 10

## Headnote

Motor Vehicles Act, 1939-S. 58(2) proviso-Delay in applying for renewal
of existing permit-I/ could be condoned-Chapter IV A ,-If a self contained
code-Renewal application under S. 68F( ID )-Whether s. 57 applicable.
Limitation Act, 1963-Ss. 5 and 29(2)-lf applicable.
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 be'
fore 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 Regional Transport Authority.
The proviso to s. 6SF(ID) provides for the renewal of an existing permit
for a limited period when a Scheme is published under s. 68C. Since a Scheme
was published under this section the appellant made an application under s. 68F
(lD) for renewal of his permit. It was rejected by the RTA on the ground that
there was delay of 18 days which was not capable of being condoned.
The
State Transport Appellate Tribunal dismissed his appeal and the High Court
summarily rejected his writ petition.
In appeal to this Court it wrui contended that (i) Chapter IVA of the Act,
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in 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
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s. 68F(ID) or {ii) in the alternative the delay could be condoned by the RTA
for sufficient cause under s. 5 read withs. 29(2) of the Limitation Act, 1963.
Dismissing the appeal,
HELD: (!) (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
F
schc:me under s. 68C would have been barred. This, the legislature did not want
andl hence the proviso was introduced permitting renewal of an existing permit
though for a limited period, despite the general prohibition enacted in oub-s. (ID).
l11is renewal was not intended to be some special kind of renewal.
There isno reason why the provisions of s. 57 and the proviso to s. 58(2) should not
apply in Cal!e of a renewal application under the proviso to s. 68F(1D).
.
[569 A-BJ
(b) Chapter IVA is not a self-contained code and the other sections apply
G
to an application under the proviso to s. 68F(lD) of the Act. [569D]
(i) The procedure in s. 57 .applies because, there is no other procedure prescribed by the Act.
[569CJ
(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.
[5690]
(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]
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SUPREME COURT REPORTS
( 1977] 1 S.C.R.
~2) '.fhe word used. in sub-s. ~ is.'may' and not 'shall' and the RTA is given
a discretion. to entertam an application for renewal of a permit even where it
~s be>:ond tlllle, th~ugh not more than 15 days. It could never have been the
~ntentio!l of the le~1Sla_ture that even where there is no sufficient cause for delay
m makmg an apphcal!on 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. f570F, 571A-B]
.
(3) (a) Section 29.(2). of the Limitation Act, 1963 makes s. 5 applicable
in the case of an apphcal!on for renewal unless its applicability can be said to
be expressly excluded by any provision of the Act. Sub-section (3) of s. 58 in
so ~any terms says that the RTA may condone the delay in making of an
apphcat10n for renewa

## Text

.,
563
MOHD. ASHFAQ
v.
STATE TRANSPORT APPELLATE TRIBUNAL U.P. AND ORS:
September 10, 197 6
(P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.J
Motor Vehicles Act, 1939-S. 58(2) proviso-Delay in applying for renewal
of existing permit-I/ could be condoned-Chapter IV A ,-If a self contained
code-Renewal application under S. 68F( ID )-Whether s. 57 applicable.
Limitation Act, 1963-Ss. 5 and 29(2)-lf applicable.
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 be'
fore 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 Regional Transport Authority.
The proviso to s. 6SF(ID) provides for the renewal of an existing permit
for a limited period when a Scheme is published under s. 68C. Since a Scheme
was published under this section the appellant made an application under s. 68F
(lD) for renewal of his permit. It was rejected by the RTA on the ground that
there was delay of 18 days which was not capable of being condoned.
The
State Transport Appellate Tribunal dismissed his appeal and the High Court
summarily rejected his writ petition.
In appeal to this Court it wrui contended that (i) Chapter IVA of the Act,
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in 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
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s. 68F(ID) or {ii) in the alternative the delay could be condoned by the RTA
for sufficient cause under s. 5 read withs. 29(2) of the Limitation Act, 1963.
Dismissing the appeal,
HELD: (!) (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
F
schc:me under s. 68C would have been barred. This, the legislature did not want
andl hence the proviso was introduced permitting renewal of an existing permit
though for a limited period, despite the general prohibition enacted in oub-s. (ID).
l11is renewal was not intended to be some special kind of renewal.
There isno reason why the provisions of s. 57 and the proviso to s. 58(2) should not
apply in Cal!e of a renewal application under the proviso to s. 68F(1D).
.
[569 A-BJ
(b) Chapter IVA is not a self-contained code and the other sections apply
G
to an application under the proviso to s. 68F(lD) of the Act. [569D]
(i) The procedure in s. 57 .applies because, there is no other procedure prescribed by the Act.
[569CJ
(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.
[5690]
(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]
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SUPREME COURT REPORTS
( 1977] 1 S.C.R.
~2) '.fhe word used. in sub-s. ~ is.'may' and not 'shall' and the RTA is given
a discretion. to entertam an application for renewal of a permit even where it
~s be>:ond tlllle, th~ugh not more than 15 days. It could never have been the
~ntentio!l of the le~1Sla_ture that even where there is no sufficient cause for delay
m makmg an apphcal!on 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. f570F, 571A-B]
.
(3) (a) Section 29.(2). of the Limitation Act, 1963 makes s. 5 applicable
in the case of an apphcal!on for renewal unless its applicability can be said to
be expressly excluded by any provision of the Act. Sub-section (3) of s. 58 in
so ~any terms says that the RTA may condone the delay in making of an
apphcat10n for renewal a_nd entertain it on merits provided the delay is of not
more th~n 15 days.
This clearly means that if the application for renewal is
beyond tlllle by more than 15 days, the1 RTA shall no~ be entitled to entertain it.
[571E-GJ
<b) .There is an express provision in sub-s. (3) that delay in making an
apphcat10n for renewal shall be condonable only if it is of not more lhan 15
days and that expressly excludes the applicability of s. 5 in cases where an
application for renewal is delayed by more than I 5 days.
[571GJ
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
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No. 2128/73).
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Yogeshwar Prasad and Miss Rani Arora for M /s Bagga for the
Appellant.
G. N. Dikshit and 0. P. Rana 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 w1it 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 pennit 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-reach~ng character
were niade in the Act by Act 56 of 1969 and sub-sectioru;
(lA) to
(lD) were introduced in Section 68F after sub-section (1 ).
These
sub-sections are material and they may be reproduced as follows :
"68F(lA) Where any scheme has been published by a
State Transport Undertaking under secti<?n ?8C, that Undertaking may apply for a temporary permit, rn respect of any
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MOHD. ASHFAQ v. STATE TRANSPORT (Bfwgwati, J.)
565
. area or route or portion thereof specified in the said scheme,
A
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 Transport Authority, as the case may be, shall, if it is satisfied that it is necessary to increase, in the public interest, the number of vehicles
operating in such area or route or portion thereof, issue the
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temporary permit prayed for by the State Transport Undertaking.
(lB) A temporary permit iSJSued in pursuance of the provisions of sub-section ( 1 A) shall be effective, -
(i) if the scheme is published under sub-section (3) Olf
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 L>ub-section (3)
of section 68D, until the expiration of the one week
from the date on which the order under sub-section
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(2) of section 68D is made.·
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(lC) If no application for a temporary permit is made
under sub-section (1 A), 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 effective on the issue of a permit to
the State Transport Undertaking in respect of that area or
route or portion thereof .
(lD) Save as otherwise provided in sub-section (lA) of
sub-section IC), 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
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a scheme published under section 68C expires
after such
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publication, such permit may be renewed for a limited
period, 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 goiilg to expire
on 1st July, 1971, the appellant made an application for renewal of
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the permit under the proviso to sub-section (lD) 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
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SUPREME COURT REPORTS
[1977] l s.c.:;t.
Regional Transport Authority, there was admittedly no objector against
it, but the Regional Transport Authority took the view that under the
proviso to sub-section (2) of Section 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
C
Tribunal and in the appeal the appellant challenged the correctness of
the order of the Regional Transport 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
D
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
E
Appellate Tribunal accordingly confirmed
the order of the Regional
Transport Authority.
This led to the.filing of a writ petition by the appellant in the High
Court of -t\}lahabad.
The High Court i;ummarily rejected the writ
petition stating that no ground had been made out for exercise of the
extraordinary jurisdiction of the High Court under Article 226 of the
F. Constitution.· Hence the appellant brought the present appeal with
special leave obtained from this Court.
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Two contentions were urged on behalf of the appellant in support
of the appeal. The first contention was that the tirne 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
pennit 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 extcnd~d
time limit, it could be condoned by the Regional Transport Authonty
for sufficient cause by reason of section 5 read with section 29, subsection (2) of the Limitation Act, 1963. The second contention w'hich
followed on the acceptance of the last contention was that the appellant had sufficient caus.: for not preforring the application for renewal
.._·
MOHD. ASHFAQ v. STATE TRANSPORT (Bh;;!fwati, .f.)
567
of his permit within the extended time limit anq hence the Regional
A
Transport Authority should have condoned the delay and entertained
the application on merits. The validity of both th~e contentions was
disputed on behalf of respondents 1 and 2 and it was urged that the
time limit specified in the proviso to sulHscction (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
B
<.1pplication 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 prescribed 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 IV A
which
contains,
i111er alia, section 68F, is a self-contained Chapter and nothing in the
9thcr 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 to 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,
marufe1Stly wrong.
The scheme of Chapter IV A is clear and it does
not exclude the applicability of the provisions· contained. in section 37
and the proviso to sub-section (2) of section 68.
Chapter NA contains a fasciculus of sections commencing from 'section 68A and ending with section 68-B.
Section 68-A defines certain expressions m;ed
in Chapter NA. Section 68-B gives overriding effect to the provisions
contained in Chapter NA by saying that these provisions shall have
effect, notwithstanding anything inconsistent therewith
contained in
Chapter IV or in any other Jaw for the time being in force.
Section
68-C provides that where any State Transport Undertaking
iJS
of
Opinion that for the purpose of providing 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
~cheme may be prepared by the .State. Transport Undertaking giving
particulars of the nature of the services proposed to be rendered, the
route prooosed to be covered and other prescribed particulars and such
scheme shall be duly published.
Certain categories of persons arc
empowered by section 68-D S'llb-section ( 1) to file objections against
the .!lchcrne published under section 68-C and the State Government
1hav then, after considering such obiections and hearing the
parties,
f!pprove 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-sPction (2)
shall be published in the Official
Gazette arid it shall thereupon .become final and shall he called the
apnroved scheme and the routes. to 'Yhi.ch it rehlt~s sq~Jl .~e called the
notified routes. Section 68-E provides for "cancellation or modification
of the scheme .. Then follpws_ section (i8-F :witich is material-for our
purpose. Sub"sectfori. (l )' of tljat section. provides for issue of a permit to ·the State Transport Undertaking in respect of a· not:ifie.d route
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
after publi~ation of an approve~ sc.heme. But what is to happen du.rmg the penod between the pubhcat1on of a scheme under section 68-C
and the publicaiton of the approved scheme under sub-section (3) of
section 68-D ? That is taken care of by sub-sections (lA) 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 specified in the
scheme.
Sub-section (1-D) imposes a prohibition 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 publication under section 68-C of any scheme and the date of
publication 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 l!nder 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 imder 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 for grant of a permit and by reason of
section 58 sub-section (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 provisions in section 57 and the proviso to sub-section (2) of
section 58 on their plain language apply to every application 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 apolication 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 specially provided for in the
,.-
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i
MOHD. ASHFAQ v. STATE TRANSPORT (Bhagwati, J.)
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 publication of a scheme under section
68-C 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 si;heme 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 enacted in sub-section ( 1-D) .
This renewal was not intended to be some 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 there would be 110 procedure for dealing with such an application. for renewal and in that event, how would the objections be invited
against the application for renewal and within what time arid 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 N-A is not a self-contained Chapter
to which the other provisions of the Act are inapplicable. 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
~ection 64 and it was to exclude the applicability of section 64 that
sub-section (3) of section 68-F was enacted. These two circumstances
clearly point to the conclusion that the other provisions of the Act, to
the extent to which their language warrants, apply in relation to proceeding's under Chapter NA, 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.
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That takes us to the next question as to the applicability of section
5 of the Limitation Act, 1963 to an application for renewal of a permit.
It would be convenient at this stage to refer to the provisions of subsections (2) and (3) of section 58, which, so far as material, read as
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follows:
"(2) A permit may be renewed on an application made
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SUPREME COURT REPORTS
[1977) 1 S.C.R.
<ind disposed of as if it were an application for a permit :
Provided that the application for the renewal 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 Region~! 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 renewi1l
of-a permit should be made not less than 120 days before the date of
<:xpiry of the permit.
But, notwithstanding 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 subsection (2), "if the application is made not more than 15 days after
the said last date. and\ is accompanied by the prescribed 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" ;md
the Regional Transport Authority is given a discretion to entertain an
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 circumstances of each case.
The discretion is to
be exercised _not on any arbitrary of fanciful grounds or whim or cap1'ice 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 di~
cretion on a judicial or quasi-judicial authority that the discretion i~
to be exei:cise<l in .~ judicial manner_ on _well set,tled . legal
pri~ciplcs,
It. wquld. not be nght to attribute to the Legislature an intention to
confer unguided a"::! 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 1:enewal within .time is made. out by the applicant.
This
...
MOHD. ASH FAQ v. STATE TRANSPORT (Bhagwaii, J.)
5 71
criterion can legitimately be imported from ~~tion 5 of the L~mita
tion Act, 1963 which contains ~n allied prov1S1on for condonat10n oli
delay where an application is made beyond time.
It could never
have been the intention of the Legislature that even where there 1s no
sufficient cause for delay in making an application for renewal,
the
Regional Transport Authority should· still be bound to ent~:tain the
application for renewal merely, on the ground that the delay 1s 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 mattefi 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 bo condoned as of course, there was no
need for a separate provision in sub-section ( 3), but th~ 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, clear that sub-section. ( 3) of section 5 8 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-section (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, 19.63 apply so as to empower the Regional Transport Authority, for sμfficient 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 applicability 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 purposo was sub-section (3). Does sub-section (3) expressly
exclude further extension of time under section 5 '? If it docs, 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 condono 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 ex~
press provision in sub-section (3) that delay in making an application
for renewal shall be condonable only if it is of not more than 15 days
and that expressly excludes the applicability of section 5 in casCI! where
an application for renewal is delayed by more than 15 days.
This
provision may seem harsh, but it has been deliberately and adVisedly
made because tho question of renewal of a permit must obviously bo
decided before the expiration of the period of the permit and in view
of the elaborate procedure set out in section 57 for dealing 1Vith an
application for renewal, a certain minimum period before the expfra5 -123-4SCT/76
A
B
c
D
E
F
G
H
A
13
c
572
SUPREME COURT REPORTS
(1977] 1 S.C.R.
tion of the period of the permit must be provided within which this
procedure can be completed so that thf! 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 Legislature 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 appellant 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 rejecti11g
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.
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