judgement:
ition (Criminal) No. 584 of 1983.
(Under article 32 of the Constitution of India) R.K. Garg and D.K. Garg for the Petitioner.
Ravindra Bana and A.K. Sanghi for the Respondent.
The following Judgments were delivered, DESAI, J. I have very carefully gone through the opinion prepared by my learned brother Varadarajan, J.
But I regret my inability to agree with the same.
All the relevant facts and the grounds on which the order of detention was made against the petitioner have been succinctly set out by my learned brother and therefore, it is not necessary to recapitulate them here.
However, the only ground examined by my learned brother is that the order of detention is vitiated on account of taking into consideration grounds Nos. 1 and 2 which were stale and not proximate to the time when detention order was made and therefore, they are irrelevant, and would vitiate the order of detention.
Grounds Nos. 1 and 2 relate to the events that occurred on March 20, 1978 and August 9, 1980.
The order of detention is made on May 6, 1983.
In between there are four other incidents involving the detenu dated July 13, 1982, July 26, 1982, September 8, 1982 and January 10, 1983.
The order of detention is grounded on the subjective satisfaction of the Detaining Authority that with a view to preventing the detenu from acting in any manner prejudicial to the security of Satna City, it was necessary to detain the detenu.
When criminal activity of a person leads to such a drastic action as detention without trial, ordinarily a single stray incident may not unless contrary is shown be sufficient to invoke such drastic power of preventive detention.
Ordinarily, drastic power of preventive detention without trial is invoked when the normal administration of criminal justice would fail.
to prevent the person so acting in a manner set out in sub sec.
(2) of Sec. 3 of the National 320 Security Act, 1980.
In order to avoid the charge that a stray incident seized upon to invoke such drastic power of preventive detention, the authority charged with a duty to maintain public order or assure security of the State, may keep a close watch on the activities of the miscreant for some time and repeated indulgence into prejudicial activity may permit an inference that unless preventive detention is resorted to, it would not be possible to wean away such person from such prejudicial activity.
Therefore, when in 1983, an action was proposed to be taken under sub sec.
(2) of Sec. 3, the Detaining Authority examined the history of the criminal activity of the detenu and took into account a continuous course of conduct which may permit an inference that unless interdicted by a detention order, such activity cannot be put to an end the power under sub sec.
(2) of Sec.
3 is exercised.
Obviously, if there is a big time lag between the last of the events leading to the detention order being made and the remote earlier event, the same cannot be treated as showing a continuity of criminal activity.
But if events in close proximity with each other are taken into account for drawing a permissible inference that these are not stray or spasmodic events but disclose a continuous prejudicial activity, the reference to earlier events cannot be styled as stale or remote which would vitiate the order of detention.
In this connection, one may refer to Gora vs State of West Bengal.
This Court after a review of the earlier decisions observed that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.
The question is whether the past activities of the detenu are such that the detaining authority can reasonably came to the conclusion that the detenu is likely to continue in his unlawful activities.
This view was affirmed in Smt.
Rekhaben Virendra Kapadia vs State of Gujarat and Others.
In a recent decision in Firrat Raza Khan vs State of Uttar Pradesh and Ors.
this Court held that when both the incidents are viewed in close proximity, the propensity of the petitioner to resort to prejudicial activity becomes manifest and the Court therefore, rejected the contention that the earlier event was not proximate in point of time and had no rational connection with the conclusion that the detention was necessary for maintenance of public order.
321 Turning to the facts of this case, if each event is examined in close proximity with each other, the events of 1978 and 1980 referred to in grounds Nos. 1 and 2 cannot be rejected as a stray or not proximate to the making of the detention order.
But they provide the genesis of the continuity of the prejudicial activity of the detenu and they appear to have been relied upon for that limited purpose.
I would therefore, find it difficult to quash the detention order on the short ground that incidents set out in grounds Nos. 1 and 2 are stale and would be irrelevant and therefore, the detention order is vitiated.
I would therefore uphold the detention order.
VARADARAJAN, J.
This writ petition under Article 32 of the Constitution is for quashing the Order of detention dated 6.5.1983 passed by the second respondent District Magistrate, Satna as being arbitrary and unreasonable and for the issue of a writ of habeas corpus directing the immediate release of the petitioner Kamlakar Prashed Chaturvedi.
There is also another prayer in the petition, which cannot be granted in these proceedings, and that is to direct the first respondent State of Madhya Pradesh to pay compensation to the petitioner for the wrongful detention.
The second respondent passed the Order of detention dated 6.5.1983 against the petitioner under section 3 (2) of the .
The grounds of detention were served on the petitioner in jail and copy thereof was served on the petitioner 's brother on 6.5.1983.
The following are the grounds: (1) On 20.3.1978 petitioner unauthorisedly entered the Nagar Mahapalika at Satna and beat the Revenue Inspector Ram Biswas Tiwari in the presence of other Government employees as a result of which those employees ran away on account of fear and a first information report has been lodged against the petitioner for offences under Ss. 323 and 353 I.P.C.; (2) On 9.8.1980, petitioner and his associates Vijay Shankar and three others formed themselves into an unlawful assembly and unauthorisedly entered the Badri Hotel situate at Station Road and beat Surender Kumar Srivastava with sticks and rod, as 322 a result of which the customers in the hotel and passers by ran away in panic, and a first information report has been lodged against the petitioner and others for offences under Ss. 307, 147, 149 and 501 I.P.C.; (3) On 13.7.1983, petitioner and his associate Kamlesh entered the Land Development Bank and beat Gaya Prasad Pandey in the presence of the Manager of the Bank and threatened to beat him with shoes at the road crossings in Satna and on account of the terror the staff of the Bank ran away and Gaya Prasad Pandey has not lodged any report; (4) On 26.7.1982, petitioner unauthorisedly entered the office of the Public Works Department and tried to obtain by force approval of a wood contract from the Office Secretary R.P. Sharma and on his refusal to comply with his demand the petitioner took away papers and intended to beat the Office Secretary, and the office staff ran away due to the terror and a first information report has been lodged against the petitioner for offences under Ss. 353 and 448 I.P.C.; (5) On 8.9.1982, petitioner unauthorisedly entered the office of the Land Development Bank at Satna and threatened to beat the Chairman Ram Asray Prasad, M.L.A. and he again threatened to beat that person on 1.10.1982 at the Guest House at Bhopal in the presence of one Gulshar Ahmed; (6) On 1.1.1983, petitioner with his associates entered the Land Development Bank, Satna and threatened the Guard and broke the telephone and beat one Tara Chand Jain at the Dharamshala later, and a first information report was lodged at the Police Station about that incident, and on 15.1.1983 Ram Asray Prasad, M.L.A. has reported to the police at Jahangirabad, Bhopal that at the Tara Chand Jain Guest House the petitioner threatened to break his arm as a result of which Harijans employed in the Land Development Bank were feeling insecure and a 323 first information report has been lodged against him on 6.1.1983; (7) On 25.3.1983 at night, petitioner with his associates threatened Bijju Prasad Misra and Shanti Prasad Misra near Dashrath Singh garage saying that he would kill them if they gave evidence against Anup Singh and Ram Charan and a case has been registered against him on 26.3.1983 under Ss. 107 and 117 I.P.C. and a notice calling upon him to appear in the Court on 2.4.1983 had been served on him and he left the Court without signing the order sheet.
The petitioner 's case is that the detention Order is politically motivated and has been passed at the instance of the Congress (I) M.L.A.Ram Asray Prasad as the petitioner is a social worker who had always raised his voice against goondas who are protected by the Congress (I) Party in Madhya Pradesh and had organised a number of rallies against the unscrupulous and uncivilized behaviour of the Block Development Officers with illiterate and poor farmers of the State.
The second respondent has passed the Order of detention mechanically without applying his mind to the facts and circumstances of the case on the basis of the first information, reports lodged against the petitioner.
The grounds of detention must be precise, pertinent, proximate and relevant.
Vagueness and staleness would vitiate the ground of detention as held in Shiv Prasad Bhatnagar vs State of Madhya Pradesh.
All the seven grounds do not fall within the realm of public order but relate only to law and order.
Grounds 1 to 4 suffer from want of proximity to the order of detention.
Grounds 5 and 6 are vague.
Ground 7 is irrelevant.
The State Government has not considered the petitioner 's representation dated 25.5.1983 expeditiously.
The Order of detention contravenes Article 22 (5) of the Constitution and is consequently liable to be quashed.
The petition is opposed.
The District Magistrate, Satna has contended in his counter affidavit that the petitioner 's detention has been ordered because his recent activities coupled with the past incidents are prejudicial to the maintenance of public order.
The Order of detention was considered necessary to prevent him from 324 repeating the offences because the petitioner has a tendency to go on violating the laws.
The grounds of attack made in the petition have been denied in the counter affidavit and it is stated that the State Government had considered the petitioner 's representation and rejected it on 4.6.1983 and even the Advisory Board has rejected his representation.
In addition to the above grounds of attack on the Order of detention the petitioner has stated in para 13 of the Writ Petition that the Detaining Authority has not "suggested the relevant documents on the basis of which the satisfaction of passing the detention Order has been framed".
Perhaps, what is meant to be conveyed by that allegation of the petitioner is that relevant documents on the basis of which the subjective satisfaction of the Detaining Authority had been reached have not been supplied to the petitioner.
The learned counsel for the petitioner submitted in the course of his arguments before us that the copies of the first information reports referred to in the grounds of detention had not been supplied to the petitioner alongwith grounds of detention.
The said allegation in para 13 of the Writ Petition does not naturally appear to have been understood by the second respondent who has not stated anything about it in his parawise reply in the counter affidavit.
It is not necessary to consider all the other objections raised by the petitioner in his Writ Petition as we propose to dispose of the petition on the ground of want of proximity of grounds 1 and 2, particularly ground 1 to the order of detention dated 6.5.1983.
Those grounds relate to alleged incidents of 20.3.1978 and 9.8.1980 which are more than 5 years and about 2 years respectively prior to the date of the Order of detention.
This Court has taken a strict view of the law of preventive detention which deprives the citizen of his freedom without a trial and full fledged opportunity for him to prove his innocence.
In Shalini Soni vs Union of India to which one of us was a party, it is observed: "Quite obviously, the obligation imposed on the detaining authority, by article 22 (5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation, carries with it the imperative implication 325 that the representation shall be considered at the earliest opportunity.
Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by article 22 (5) read with article 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed.
A breach of the procedural imperative must lead to the release of the detenu.
The representation dated July 27, 1980 was admittedly not considered and on that ground alone the detenu was entitled to be set at liberty.
In the view that we have taken on the question of the failure of the detaining authority to consider the representation of the detenu it is really unnecessary to consider the second question raised on behalf of detenu in Criminal Writ Petition No. 4344 of 1980.
However, this question has been squarely and directly raised and, indeed, it was the only question raised in the other two Criminal Writ Petitions and we have, therefore, to deal with it." In Mehdi Mohamed Joudi v State of Maharashtra to which one of us was a party the Order of detention was set aside on the ground that the materials and documents were not supplied pari passu the grounds of detention and that there was delay of more than a month in disposing of the representation of the detenu.
In Taramati Chandulal vs State of Maharashtra to which one of us was a party the Order of detention was set aside on the ground that the documents relied upon in the Order of detention were not supplied as part of the grounds alongwith the grounds of detention.
In Shibban Lal Saksena vs The State of Uttar Pradesh it is observed: "The petitioner was arrested on the 5th of January, 1953, under an order, signed by the District Magistrate of Gorakhpur, and the order expressly directed the detention of the petitioner in the custody of the Superintendent, 326 District Jail, Gorakhpur, under sub clauses (ii) and (iii) of clause (a) of section 3(1) of the , as amended by later Acts.
On the 7th of January following, the grounds of detention were communicated to the detenu in accordance with the provisions of section 7 of the and the grounds, it appears, were of a two fold character, falling respectively under the two categories contemplated by sub clause (ii) and sub clause (iii) of section 3(1) (a) of the Act.
In the first paragraph of the communication it is stated that the detenu in course of speeches delivered Ghugli on certain dates exhorted and enjoined upon the cane growers of that area not to supply sugar cane to the sugar mills or even to withhold supplies from them and thereby interfered with the maintenance of supply of sugar cane essential to the community.
The other ground specified in paragraph 2 is to the effect that by using expressions, some of which were quoted under neath the paragraph, the petitioner incited the cane growers and the public to violence against established authority and to defiance of lawful orders and directions issued by Government officers and thereby seriously prejudiced the maintenance of public order. . . "The sufficiency of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope of purpose of the legislative provision, cannot be challenged in a court of law except on the ground of mala fides.
A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under section 7 of the Act.
What was happened, however, in this case is some what peculiar.
The Government itself, in its communication dated the 13th of March, 1953, has plainly admitted that one of grounds upon which the original order of detention was passed is unsubstantial or non existent and cannot be made a ground of detention.
The question is, whether in such circumstances the original order made under section 3(1) (a) of the Act can be allowed to stand, 327 The answer, in our opinion, can only be in the negative.
The detaining authority gave here two grounds for detaining the petitioner.
We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.
To say that the other ground, which still remains is quite sufficient to sustain, the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is again the legislative policy underlying the statute.
In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.
" The first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the order dated 6.5.1983.
There can be no doubt these grounds especially ground No. 1 relating to an incident of 1978 are too remote and not proximate to the Order of detention.
It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an Order of detention under section 3(2) of the Act.
Nor it is open to the Detaining Authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order, for as a matter of fact it has been mentioned as a ground of detention.
Now there is no provision in the similar to section 5A of the which says that where a person has been detained in pursuance of an Order of detention under sub section 1 of section 3 which has been made on two or more grounds, such Order of detention shall be deemed to have been made separately on each of such grounds and accordingly (a) such Order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non existent, non relevant, not connected or not proximately connected with such persons or invalid for any other reason, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub section 1 of section 3 with reference to the remaining ground or grounds and made the order of detention and (b) the Government or officer making 328 the order of detention shall be deemed to have made the order of detention under the said sub section 1 after being satisfied as provided in that sub section with reference to the remaining ground or grounds.
Therefore in the present case it cannot be postulated what view would have been taken by the Detaining Authority about the need to detain the petitioner under section 3(2) of the Act if he had not taken into account the stale and not proximate grounds 1 and 2 into consideration in arriving at the subjective satisfaction.
We are, therefore, of the opinion that the petitioner 's detention is unsustainable in law.
Accordingly, we quash the order of detention and direct that the petitioner be set at liberty forthwith.
H.S.K. Petition allowed.

dataset_name: IN-Abs

summary/full:
The petitioner who was detained under sec.
3(2) of the , was conveyed seven grounds of detention by the Detaining Authority.
The first two grounds related to the incidents that occurred more than 5 years and about 3 years respectively prior to the date of the order of detention.
The petitioner challenged the order of detention as vitiated on account of the grounds of detention being vague and stale.
Allowing the writ petition by majority, HELD: The order of detention is quashed.
(Per Chinnappa Reddy and Varadarajan, JJ.) It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under S 3(2) of the Act.
Nor it is open to the Detaining Authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order, for as a matter of fact it has been mentioned as a ground of detention.
[327 E F] Shalini Soni vs Union of India, ; ; Mehdi Mohamed Joudi vs State of Maharashtra, ; Taramati Chandulal vs State of Maharashtra AIR 1981 SC 871; and Shibban Lal Saksena vs The State of Uttar Pradesh, referred to.
In the instant case the first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the order dated 6 5 1983.
There can be no doubt that these grounds especially grounds No. 1 relating to an incident of 1978 are too remote and not proximate to the order of detention.
[327 D E] There is no provision in the similar to s.5A of the which says that where a person has been detained in pursuance of an order of detention under sub sec.
(1) of S.3 which has been 318 made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non existent, non relevant, not connected or not proximately connected with such persons or invalid for any other reason, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub sec.
(1) of s.3 with reference to the remaining ground or grounds and made the order of detention and (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub sec.
(1) after being satisfied as provided in that sub section with reference to the remaining ground or grounds.
[327 F H; 328 A] In the present case, therefore, it cannot be postulated what view would have been taken by the Detaining Authority about the need to detain the petitioner under sec.
3(2) of the Act if he had not taken into account the stale and not proximate grounds 1 and 2 into consideration in arriving at the subjective satisfaction.
[328 A B] (Per Desai J.) When criminal activity of a person leads to such a drastic action as detention without trial, ordinarily a single stray incident may not unless contrary is shown be sufficient to invoke such drastic power of preventive detention.
In order to avoid the charge that a stray incident was seized upon to invoke such drastic power of preventive detention the authority charged with a duty to maintain public order of assure security of the State, may keep a close watch on the activities of the miscreant for some time and repeated indulgence into prejudicial activity may permit an inference that unless preventive detention is resorted to, it would not be possible to wean away such person from such prejudicial activity.
[319 G H; 320 A B] In the instant case therefore, when in 1983, an action was proposed to be taken under sub sec.
(2) of sec.
3, the Detaining Authority examined the history of the criminal activity of the detenu and took into account a continuous course of conduct which may permit an inference that unless interdicted by a detention order, such activity cannot be put to an end the power under sub sec.
(2) of sec.
3 is exercised.
[320 B C] If there is a big time lag between the last of the events leading to the detention order being made and the remote earlier event, the same cannot be treated as showing a continuity of criminal activity.
But if events in close proximity with each other are taken into account for drawing a permissible inference that these are not stray or spasmodic events but disclose a continuous prejudicial activity, the reference to earlier events cannot be styled as stale or remote which would vitiate the order of detention.
[320 D E] In the instant case if each event is examined in close proximity with each other, the events of 1978 and 1980 referred to in grounds Nos. 1 and 2 cannot be rejected as a stray or not proximate to the making of the detention order.
319 But they provide the genesis of the continuity of the prejudicial activity of the detenu and they appear to have been relied upon for that limited purpose.
[321 A B] Gora vs State of West Bengal, ; ; Smt.
Rekhaben Virendra Kapadia vs State of Gujarat and Ors.
,[1979] 2 S.C.C. 566; and Firrat Raza Khan vs State of Uttar Pradesh and Ors., , referred to.


judgement:
Civil Appeal No. 1601 of 1971.
Appeal by Special Leave from the Judgment and Order dated the 30th March, 1971 of the Madras High Court in C.R.P. No. 19883 of 1968.
T.S. Krishnamurthy Iyer, Gopal Subramanium and Mrs. Saroja Gopalakrishnan for the Appellant.
P. Govindan Nair, Miss Seita Vaidyalingam and Mrs. Baby Krishnan for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against an order dated March 30,1971 of the Madras High Court dismissing a revision petition arising out of proceedings under the Madras City Tenants Protection Act, 1921.
Almost fifty years ago, on September 19, 1934, the respondent and his mother granted a lease in favour of one Abhirama Chettiar in respect of 50 cents of open land in Coimbatore for a period of twenty years on an annual rent of Rs. 1080 for the construction of a building suitable for use as a theatre.
Abhirama Chettiar constructed a theatre on the site.
Subsequently, on July 14, 1937 Abhirama 332 Chettiar assigned his rights to the appellant.
The appellant attorned to the respondent and was accepted as a tenant.
In March, 1964, the respondent served notice upon the appellant calling upon it to vacate the property and surrender vacant possession of the site.
The appellant refused to do so, and set up an oral agreement entitling it to an extension of the lease for a further period of twenty years.
The respondent filed a suit against the appellant for its ejectment.
Shortly thereafter, the appellant filed a suit against the respondent for specific performance of an agreement to extend the lease.
On January 16, 1957 the learned Subordinate Judge, Coimbatore, decreed the respondent 's suit for possession with mesne profits and dismissed the appellant 's suit.
The appellant appealed to the High Court against the two decrees.
During the pendency of the appeals the Madras City Tenants ' Protection Act, 1921 was extended to the town of Coimbatore with effect from February 19, 1958.
The appellant filed Civil Miscellaneous Petition No. 1835 of 1958 in the appeal arising out of the suit for ejectment and prayed for directions under section 9 of the Act for the sale of the site to it.
The application was resisted by the respondent on the ground that section 9 was void.
On July 28, 1958 Panchapkesa Iyer J. passed the following order: "I declare that the petitioner is entitled to purchase the site concerned in the petition under Section 9 of the Act, but on paying the full market value current today as freely undertaken by himself.
The lower Court will appoint a suitable experienced commissioner to fix the value of the site based on the market value prevalent this day (28th July 1958).
The Commissioner 's fees will be paid by the commissioner who will bear it himself.
In this petition all the parties will bear their own costs.
As soon as this order becomes final the petitioner will withdraw A.S. No. 100 of 1957 and 255 of 1957 on the file of this Court, as infructuous as undertaken by him, and they will then be dismissed without costs.
" The petition was remitted by the learned Judge to the Subordinate Court, Coimbatore for appointing a Commissioner to fix the market value of the site.
Against that order the respondent preferred a Letters Patent Appeal, which was dismissed.
The respondent then appealed to the Supreme Court.
By its judgment dated March 4, 1964, reported as N. Vajrapani Naidu and Another vs The New Theatre 333 Carnatic Talkies Ltd., Coimbatore the Supreme Court upheld the judgment of Panchapakesa Iyer J. and dismissed the appeal.
Now during the pendency of the appeal in the Supreme Court, section 9 of the Madras City Tenant 's Protection published in the Fort St. George Gazette dated July 27, 1960 Act was amended by Madras Act No. XIII of 1960.
Upon that, the respondent filed two petitions in the High Court, C.M.P. No. 7241 of 1960 praying for the review and modification of the order dated July 28, 1958 in the light of the amended section 9, and C.M.P. No. 7242 of 1960 praying for stay of the enquiry directed by that order.
On April 1, 1964, upon the dismissal of the respondent 's appeal in this Court, the High Court dismissed the appeals against the decrees passed by Panchapakesa Iyer J. as withdrawn.
The High Court also transferred the C.M.P. Nos. 7241 and 7242 of 1960 to the trial court for consideration, and directed the trial court to fix the market value and pass final orders in C.M.P. No. 1835 of 1958.
The learned Subordinate Judge held that the respondent was entitled to the benefit of the amended section 9 of the Act, and directed the Commissioner to determine the minimum extent of land necessary for convenient enjoyment by the appellant to take steps for fixing the price thereof on the basis of the average market value of the three years immediately preceding the date of its order.
C.M.P. No. 7242 of 1960 was dismissed as superfluous.
Against the order of the trial court the appellant filed an appeal in the court of the learned First Additional Judge, Coimbatore.
The appeal was dismissed.
Thereafter, the appellant filed Civil Revision Petition No. 1883 of 1968 in the High Court, and on March 30, 1971 the High Court dismissed the Revision Petition.
The High Court affirmed that the case was governed by the amended section 9 of the Act, and rejected the contention of the appellant that C.M.P. No. 7241 of 1960 was not competent in the High Court as the order dated July 28, 1958 by Panchapakesa Iyer J. had been confirmed by the Supreme Court, in appeal.
Two contentions have been raised by the appellant in this appeal.
The first is that the amended section 9 of the Madras City Tenants ' Protection Act cannot be invoked in the present case, and that section 9, as it stood before the amendment, is the provision which governs the rights of the parties.
The other contention is that, in any event, the amended section 9 should have been invoked in the appeal 334 pending in this Court and the relief not having been sought there it was not open to the respondent to seek relief after the appeal has been disposed by this Court and the order of Panchapakesa Iyer J. had acquired finality.
Before its amendment by Madras Act XIII of 1960, section 9 provided as follows: "9.
(1) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the , taken by the landlord, may within one month of the date of the Madras City Tenants Protection (Amendment) Act, 1955, coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situated or within one month after the service on him of summons, apply to the court for an order that the landlord shall be directed to sell the land for a price to be fixed by the court.
The court shall fix the price according to the lowest market value prevalent within seven years preceding the date of the order and shall order that, within a period to be determined by the court, not being less than three months and not more than three years from the date of the order, the tenant shall pay into court or otherwise as directed the price so fixed in one or more instalments with or without interest.
(2) XX XX XX (3) On payment of the price the court shall pass a final order directing the conveyance of the land by the landlord to the tenant.
On such order being made the suit or proceeding shall stand dismissed, and any decree or order in ejectment that may have been passed therein but which has not been executed shall be vacated.
" Upon its amendment, section 9 now reads: "9 (1) (a) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the , taken by the landlord, may within one month of the date of Madras 335 City Tenants, Protection (Amendment) Act, 1955 coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situated or within one month after the service on him of summons apply to the court for an order that the landlord shall be directed to sell for a price to be fixed by the court, the whole or part of, the extent of land specified in the application.
(b) on such application, the court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant.
The court, shall then fix the price of the minimum extent of the land decided as aforesaid, or of the extent of the land specified in the application under clause (a) whichever is less.
The price aforesaid shall be the average market value of the three years immediately preceding the date of the order.
The court shall order that within a period to be determined by the court not being less than three months and not more than three years from the date of the order, the tenant shall pay into court or otherwise as directed the price so fixed in one or more instalments with or without interest.
(2) XX XX XX XX (3) (a) on payment of the price fixed under clause (b) of sub section (1) the court shall pass an order directing the conveyance by the landlord to the tenant of the extent of land for which the said price was fixed.
The court shall by the same order direct the tenant to put the landlord into possession of the remaining extent of the land, if any.
The stamp duty and registration fee in respect of such conveyance shall be borne by the tenant.
(b) On the order referred to in clause (a) being made, the suit or proceeding shall stand dismissed, and any decree or order in ejectment that may have been passed therein but which has not been executed shall be vacated.
" The question whether the case is governed by the unamended section 9 or the amended section 9 turns on the consideration whether the amendment of section 9 was intended to operate retrospectively or must 336 be construed as prospective only.
Let us begin from the beginning.
When the Madras City Tenants ' Protection Act was extended to the town of Coimbatore in 1958, the respondent 's suit for ejectment had already been filed and in fact was pending in appeal.
It was never disputed between the parties that section 9 would operate retrospectively and affect the rights of the parties in the pending appeal.
It was on that basis that the appellant applied to the court for the benefit of the provisions of section 9.
The Act itself clearly laid down that section 9 could be invoked in a pending suit or proceeding, for section 10 declared that section 9, among other provisions, would "apply to suits in ejectment . . . which are pending . . in the city of Madras before the commencement of the Madras City Tenants ' Protection (Amendment) Act, 1958, and in any municipal town or village before the date with effect from which this Act is extended to such town or village.
" It is to enable a tenant to secure the benefit of section 9 in a pending suit or proceeding that section 9 (1) provides that such tenants may apply under that provision "within one month of the date of the Madras City Tenants ' Protection (Amendment) Act, 1955 coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situated . ." This provision was necessary to enable section 9 to govern pending suits and proceedings.
The other provision in section 9 (1) providing that the period of one month would commence from "the service on him of summons" applied to future suits and proceedings.
When the Madras Act XIII of 1960 amended the principal Act, it amended not only section 9 thereof but section 10 also.
Section 10 was amended in order that the amended provisions should apply to pending ejectment suits and proceedings.
The Legislature employed the same device in respect of pending suits and proceedings as it had when respect of pending suits and proceedings as it had when the Act was originally applied to such suits and proceedings, the only difference being that while the original section 10 referred to the then existing provisions of the Act, the amended section 10 referred to the amended provisions, including the amended section 9, of the Act.
It is apparent from the provisions of the amended section 9 (1) extracted earlier that the scheme respecting the tenant 's right to purchase and the landlord 's obligation to sell, the land now stood modified.
Whereas the original section 9 (1) provided for the making of an application by the tenant within a specified period to the court for an order directing the landlord to sell the land for a price to be fixed 337 by the court, and the court was required to fix the price according to the lowest market value prevalent within seven years preceding the date of the order, and to order, within a period to be determined by the court, the tenant to pay into court or otherwise as directed the price so fixed, the amended section 9 (1) is divided into two clauses.
Clause (a) entitles the tenant, within an identical period, to apply to the court for an order requiring the landlord to sell, for a price to be fixed by the court, the whole, or part of, the extent of the land specified in the application.
The court can now direct the sale of a part only of the land mentioned in the application and is not compelled to pass an order in respect of the entire land.
Clause (b) provides that the court will first decide the minimum extent of the land necessary for convenient enjoyment by the tenant, and thereafter the court will fix the price of such minimum extent of land or of the extent of the land specified in the application, whichever is less.
Furthermore, the price is to be the average market value of the three years immediately preceding the date of the order.
We are clear in our mind that if the suit was pending on the date when the amendments in the principal Act were brought into force, the amended provisions of the Act will govern the disposal of the suit.
Now, the appellant had already filed C.M.P. No. 1835 of 1958 praying for directions under section 9 for the sale of the site.
On that application Panchapakesa Iyer J. had passed an order dated July 28, 1958 holding the appellant entitled to purchase the site on paying the full market value current on that date, and had directed the trial court to appoint a Commissioner to fix the value of the site.
The order did not dispose of the application and the suit, for under the original section (3) the statute contemplated an order by the court, after it was satisfied that the tenant had paid the price determined by it, directing the conveyance of the land by the landlord to the tenant.
It was only after such order was made that the application and the suit would stand concluded.
In Gnanaprakasam and Another vs Mahboob Bi and others, a learned Single Judge of the Madras High Court held that even where the original court had made an order fixing the price of the land and directing its payment by the tenant, the application filed by the tenant could not be regarded as at an end so long as final orders directing execution of conveyance and delivery of possession were not passed.
The stage for passing such order had not been reached yet when the principal Act was amended by 338 Act XIII of 1960.
The suit continued pending on the date when the amendments took effect.
And consequently, it was now governed by the provisions of the amended s.9.
We may reiterate that the order dated July 28,1958 did not complete the proceeding in the suit.
It constituted one stage only in the suit, and inasmuch as the suit was now to be disposed of in accordance with the amended statute the incomplete proceeding had to give way to the operation of the amended statute.
As the scheme under the original section stood superseded by the scheme enacted under the amended sections the order of July 28,1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the court in order to dispose of the suit.
The respondent, therefore, filed C.M.P. No. 7241 of 1960 praying for a review of the order dated July 28,1958 in the light of the amended s.9.
In other words, the court was now called upon to dispose of the application of the appellant, not in the light of the provisions of the original s.9 but on the basis of the provisions of the amended s.9.
We are of opinion that the trial court is right in taking the view, and the High Court in affirming it, that C.M.P. No. 1883 of 1968 and the suit had to be disposed of on the basis of the provisions of the amended s.9.
The contention to the contrary raised by the appellant must fail.
We are also unable to accept the other contention of the appellant that the respondent should have invoked the benefit of the amended section 9 in the appeal pending in this Court, and that not having done so it was not open to the respondent to apply for relief in the court below after the appeal had been disposed of by this Court.
It is apparent that the scope of the appeal filed in this Court was restricted to the validity of s.9 and section 12 of the unamended Madras City Tenants ' Protection Act.
It must be remembered that the order of Panchapakesa Iyer J, when gave rise to that appeal, was made before the Act was amended in 1960, and this Court concerned itself solely with the validity of the unamended statutory provisions.
In fact, perusal of its judgment will show that this Court declined to consider the operation of the amendments brought about in 1960.
In the circumstances, it is not possible to urge that the respondent might, or ought to, have insisted on relief under the amended s.9 in the appeal pending in this Court.
It was, 339 therefore, open to the respondent after the disposal of the appeal by this Court to apply to the court below for an order in terms of the amended s.9.
In the result, the appeal is dismissed with costs.
N.V.U. Appeal dismissed.

summary/full:
The respondent and his mother granted a lease in respect of an open site of land for a period of 20 years in favour of a person, who constructed a theatre thereon and who later assigned his rights to the appellant and the appellant was accepted as a tenant by the respondent.
The respondent subsequently served notice upon the appellant calling upon it to vacate the property and to surrender vacant possession of the site.
The appellant refused, and set up can oral agreement entitling it to an extension of the lease for a further period of 20 years.
The respondent filed a suit for ejectment against the appellant and the appellant filed a suit for specific performance of an agreement to extend the lease.
The subordinate Court decreed the respondent 's suit for possession with mesne profits and dismissed the appellant 's suit.
The appellant appealed to the High Court against the two decrees, and during their pendency the Madras City Tenants ' Protection Act, 1921 was extended to the town where the suit property was situated.
The appellant thereupon filed a Civil Miscellaneous Petition in the appeal arising out of the suit for ejectment, for directions under section 9 of the Act for sale of the site.
This application was resisted by the respondent on the ground that section 9 was void.
The High Court upheld the validity of the section, declared the appellant entitled to purchase the site under section 9 and remitted the matter to the subordinate Court for appointment of a Commissioner to fix the market value of the site.
Against that order the respondent preferred a Letters Patent Appeal which was dismissed and this order was confirmed by the Supreme Court.
During the pendency of the appeal in this Court, section 9 of the Madras City Tenants ' Protection Act was amended by Madras Act No. XIII of 1960.
The respondent filed two Civil Miscellaneous Petitions in the High Court praying for review and modification of the earlier order in view of the amended section 9, and for stay of the valuation proceedings.
330 After the dismissal of the respondent 's appeal in the Supreme Court, the High Court dismissed the pending appeals as withdrawn transferred the two Civil Miscellaneous Petitions to the trial court and directed it to fix the market value of the site and pass final orders.
The subordinate Court held that the respondent was entitled to the benefit of the amended section 9, and directed the Commissioner to determine the minimum extent of land necessary for convenient enjoyment and fix the price on the basis of the average market value of the land during the three years immediately preceding the date of its order.
The appeal to the District Court and the Civil Revision Petition in the High Court against this order were dismissed.
In the appeal to this Court it was contended on behalf of the appellant that the amended section 9 of the Madras City Tenants ' Protection Act, could not be invoked, and that section 9, as it stood before the amendment, governed the rights of the parties, and that in any event the amended section 9 should have been invoked in the appeal pending in the Supreme Court, and that relief not having been sought there, it was not open to the respondent to seek relief after the appeal had been disposed of by the Supreme Court.
Dismissing the appeal, the Court.
HELD: 1 (i) If the suit was pending on the date when the amendments in the principal Act (Madras City Tenants ' Protection Act, 1921) were brought into force, the amended provisions of the Act will govern the disposal of the suit.
[337 D] (ii) The suit continued pending on the date when the principal Act was amended by Act XIII of 1960.
Consequently, it was governed by the provisions of the amended section 9.
As the scheme under the original section stood superseded by the scheme enacted under the amended section, the order of July 28, 1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the Court to dispose of the suit.
[338 A B] (iii)When the Amendment Act XIII of 1960 amended the principal Act, it amended not only section 9 thereof but section 10 also.
Section 10 was amended in order that the amended provisions should apply to pending ejectment suits and proceedings.
The provisions of the amended section 9 (1) reveal that the scheme respecting the tenant 's right to purchase, and the landlord 's obligation to sell, the land stood modified.
Whereas the original section 9 (1) provided for the making of an application by the tenant within a specified period to the court for an order directing the landlord to sell the land for a price to be fixed by the court, and court was required to fix the price according to the lowest market value prevalent within seven years preceding the date of the order, and to order, within a period to be determined by the court, the tenant to pay into court or otherwise as directed the price so fixed, the amended section 9 (1) is divided into two clauses.
Clause (a) entitles the tenant within an identical period, to apply to the court for an order requiring the landlord to sell, for a price to be fixed by the court, the whole, or part of, the extent of the land specified in the application.
Clause (b) provides that the court will first decide the minimum extent of the land necessary for convenient enjoyment by the tenant, and thereafter the 331 court will fix the price of such minimum extent of land or of the extent of the land specified in the application, whichever is less.
[336 F H; 336 H 337 C] In the instant case, the appellant had already filed Civil Miscellaneous Petition No. 1835 of 1958 praying for directions under section 9 for the sale of the site.
On that application the High Court passed an order dated July 28,1958 holding the appellant entitled to purchase the site on paying the full market value current on that date and had directed the trial court to appoint a Commissioner to fix the value of the site.
That order did not dispose of the application and the suit, for under the original section 9(3) the statute contemplated an order by the Court, after it was satisfied that the tenant had paid the price determined by it, directing the conveyance of the land by the landlord to the tenant.
It was only after such an order was made that the application and the suit would stand concluded.
[337 E G] 2.
The scope of the earlier appeal filed in the Supreme Court was restricted to the validity of section 9 and 12 of the unamended Madras City Tenants ' Protection Act, and the Court declined to consider the operation of the amendments brought about in 1960.
It was, therefore, open to respondent after the disposal of the appeal to apply to the court below for an order in terms of the amended section 9.
[338 F H; 339 A]


judgement:
Civil Appeal No. 3787 of 1983.
Appeal by Special leave from the Judgment and Order dated the 19th March, 1971 of the Madhya Pradesh High Court in Misc.
Petition No. 565 of 1980.
S.Q. Hassan, S.K. Mehta, P.N. Puri and M.K. Dua for the Appellant.
Rameshwar Nath for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal by special leave raises a short but interesting question of law relating to the interpretation of certain provisions of the (hereinafter referred to as the Act).
The question is whether section 47 sub section (3) of the Act is attracted when an application is made by the holder of a permit for extension of the route for which the permit has been granted to him.
In order to appreciate the question, it is necessary to state a few facts giving rise to the appeal.
The appellants are a partnership firm and at all material times they held a stage carriage permit granted to them by the Regional Transport Authority for the route Dabra Karera via Lodi Mata extended upto Gwalior.
It appears that on 22nd June 1978 this route for which the permit was held by the appellants was modified at the request of the appellants and the portion of the route from Karera to Shivpuri was deleted.
Thereafter by a Notification dated 4th August 1978 certain routes were nationalised under Scheme No. 11 M which came into force with effect from 25th September 1978 and under clause 7 (b) of this Scheme, the portion of the route from Shivpuri to Satanwara was deleted and the permit of the appellants remained operative only for the remaining portion of the route, namely, Satanwara Gwalior via Dabra.
This state of affairs conti 292 nued from 25th September 1978 until 18th December 1978 when the State Government by a Notification issued in exercise of the powers conferred under sub section (2) of section 68 F of the Act made the following modifications in the various schemes approved by it under section 68 D sub section (2), including Scheme No. 11 M: "Notwithstanding anything contained in this Scheme, the private operators may be permitted to ply stage carriages for hire or reward subject to the following conditions, namely: (1) Whereas the notified route connects a district Head quarter, the portion thereof covered by the permit shall not exceed 20 kilometers and in other cases it shall not exceed 10 kilometers.
(2) The private operators shall ply the stage carriage over the distance, other than the distance of the notified route, which shall not be less than twice the distance of the notified route covered by the permit; (3) The private operators shall not pick up or set down passengers on the notified route.
Since this modification permitted plying of stage carriages by private operators even on portion of a nationalised route connecting a district head quarter and not more than 20 kms.
in length, the appellants made an application to the Regional Transport Authority for restoring the portion of the route from Shivpuri to Satanwara on the ground that Shivpuri was a district head quarter and the portion of the route between Shivpuri and Satanwara was less than 20 kilometers.
The Regional Transport Authority however took the view and in our opinion rightly, that the modification made by the State Government in Scheme No. 11 M under the Notification dated 18th December 1978 did not have any retrospective effect and the appellants were therefore not entitled to automatic restoration of the portion of the route from Shivpuri to Satanwara and in this view, the Regional Transport Authority rejected the application of the appellants.
The appellants thereupon filed a regular application in the prescribed form for extension of the route specified in their permit 293 from Satanwara to Shivpuri.
The application was published in the Gazette on 11th April 1980 and on coming to know about it, M.P. State Road Transport Corporation which is the 2nd respondent before us filed its objections against the grant of such extension.
The application together with the objections was heard by the Regional Transport Authority and by an order dated 11th September 1980 the Regional Transport Authority rejected the application on two grounds.
The first ground was that "the specific order of the State Government curtailing the Satanwara Shivpuri portion of applicant 's permit while approving Scheme No. 11 M cannot be treated as having been amended by the general amendment made to the scheme" and the other was that no extension of the route could be granted without following the procedure laid down in Section 47 sub section (3) of the Act.
This order made by the Regional Transport Authority was challenged by the appellants in a writ petition filed in the High Court of Madhya Pradesh.
There were two grounds of challenge urged on behalf of the appellants in support of the writ petition but we are concerned in this appeal with only one ground and hence we need not refer to the other ground and burden our judgment with a discussion of that ground.
The ground which was seriously pressed before the High Court and repeated before us was that Section 47 sub section (3) has no application where what is sought by an applicant is not the grant of a new permit on a specified route under section 48 but merely an extension of the route under an existing permit under sub section (8) of section 57 and the order made by the Regional Transport Authority rejecting the application of the appellants on the ground of non compliance with sub Section (3) of section 47 was therefore plainly wrong.
The appellants sought to support this ground by relying on the decision of the Madhya Pradesh High Court in Dewan Chand vs State Transport Authority.
But the learned Judge who heard the writ petition observed that the decision in Dewan Chand 's case (supra) was contrary to the view taken by this Court in R. Obliswamy Naidu vs Regional State Transport Appellate Tribunal and Delhi Transport Undertaking vs Zamindar Motor Transport Company and held that by reason of the express language of sub section (8) of section 57 an application for 294 extension of the route specified in an existing permit was tantamount to an application for grant of a new permit and hence it was subject to the provisions of section 47 sub section (3) and it could not be considered without following the procedure prescribed by sub section (3) of section 47.
The learned Judge on this view rejected the writ petition of the appellants.
The appellants thereupon preferred the present appeal with special leave obtained from this Court.
The only question which arises for consideration in this appeal is as whether section 47 sub section (3) is attracted when an application is made by a holder of a permit for extension of the route specified in the permit.
The determination of this question depends upon a true interpretation of some of the relevant provisions of the Act.
Section 2 is the definition section and clause (28A) of this section defines route to mean "a line of travel which specifies the high way which may be traversed by a motor vehicle between one terminus and another".
Chapter IV is the only material chapter for our purpose and as its heading shows, it deals with control of transport vehicles.
Section 42 provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used.
Section 43 confers certain powers on the State Government to issue directions to the State Transport Authority and section 44 provides for the constitution of State Transport Authority and Regional Transport Authorities for each State.
Section 45 specifies the authority to which an application for a permit must be made and what particulars an application for a permit shall contain is prescribed in section 46.
Section 47 sub section (1) lays down what matters shall be taken into account by the Regional Transport Authority in considering an application for a stage carriage permit and various other provisions regarding reservation of certain percentage of stage carriage permits for Scheduled Castes and Scheduled Tribes and persons belonging to economically weaker sections of the community are made in sub section (1A) to sub section (1H) of section 47.
Then follows sub section (3) of section 47 which is in the following terms: "47 (3).
A Regional Transport Authority may, having regard to the matters mentioned in sub section (1) limit the number of stage carriages generally or of any specified 295 type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.
" Section 48 sub section (1) provides that, subject to the provisions of section 47, a Regional Transport Authority may, on an application made to it under section 46, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit, provided that no such permission shall be granted in respect of any route or area not specified in the application.
Sub section (3) of section 48 empowers the Regional Transport Authority while granting a stage carriage permit to attach to the permit any one or more of the conditions set out in that sub section.
One of the conditions which may be attached to the permit is that set out in clause (xxi) and it reads as follows: "48(xxi): that the Regional Transport Authority may, after giving notice of not less than one month (a) vary the conditions of the permit; (b) attach to the permit further conditions; Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the public convenience and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof.
" Sections 49 to 51 deal with an application for grant of contract carriage permit while sections 52 and 53 deal with an application for grant of private carrier 's permit.
We are not concerned with these provisions and hence we need not refer to them.
So also we are not concerned with sections 54 to 56 which deal with application for public carrier 's permit.
Section 57 is however an important section and in its various provisions it lays down the procedure in applying for and granting permits.
Sub section (2) of section 57 296 prescribes the time within which an application for a stage carriage permit should be made and sub Sections (3) to (7) lay down the procedure which must be followed by the Regional Transport Authority while dealing with an application for a stage carriage permit made before it.
Sub section (8) of section 57 is the material provision which calls for interpretation and it runs as follows: "57 (8): An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in, the case of a stage carriage permit, by increasing the (number of trips above the specified maximum or by altering the route covered by it) or in the case of a contract carriage permit or a public carrier 's permit, by increasing the number of vehicles covered by the permit, shall be treated as an application for the grant of a new permit.
" The argument of the respondents on these provisions was, and this argument found favour with the High Court, that an application for extension of the route specified in a permit is nothing but an application to vary the conditions of the permit by altering the route covered by it and it is therefore required by sub section (8) of section 57 to be treated as an application for grant of a new permit and hence, by reason of section 48, the grant of such an application for extension must be held to be subject to the provisions of section 47 sub section (3) and no such extension can be granted without following the procedure prescribed by sub section (3) of section 47.
The validity of this argument was assailed before us on behalf of the appellants and it was contended that the fulfilment of the condition set out in sub section (3) of section 47 was not a part of the procedure for consideration of an application for extension of the route specified in a permit and when sub section (8) of section 57 provided that such an application shall be treated as an application for grant of a new permit, what was sought to be incorporated was merely the procedure set out in sub section (3) to (7) of Section 57 and not pre condition for consideration of such an application set out in sub section (3) of Section (47).
This contention, it was submitted on behalf of the appellants, was supported by Clause (xxi) of sub section (3) of Section 48, because if the condition set out in that clause is attached to a permit, the Regional Transport Authority can suo motu extend the route specified in the permit upto a distance of 297 24 k.ms.
for serving the public convenience, without being subject to the provisions of sub section (3) of Section 47 and if the Regional Transport can do so suo motu without being required to follow the procedure of sub section (3) of Section 47, there is no reason why the Regional Transport Authority should not be entitled to do so on an application for extension made by the holder of the permit.
These were the rival arguments urged on behalf of the parties and we shall now proceed to consider them.
The permit held by the appellants in the present case, after the deletion of the portion of the route from Shivpuri to Satanwara was operative only for the remaining portion of the route namely, Satanwara Gwalior via Dabra and in view of the modification made in Scheme No. 11 M by the notification issued by the State Government under section 68F sub section (2) on 18th December, 1978, the appellants applied for extension of the route from Satanwara to Shivpuri, a distance less than 20 kilometers.
The question it whether this application could be considered by the Regional Transport Authority without first determining under section 47 sub section (3) the number of stage carriages for which permits may be granted for the route Shivpuri Satanwara Gwalior via Dabra, because if the extension applied for were granted, that would be the route for which the permit would be operative.
Now, it is clear that it was a condition of the permit, after the deletion of the portion of the route from Shivpuri to Satanwara, that the appellants shall use their vehicle or vehicles only on the route Satanwara Gwalior via Dabra.
The application of the appellants for extension of this route by including the portion from Shivpuri to Satanwara was, therefore, in effect and substance, an application for varying this condition of the permit by extending the route and it clearly fell within the terms of sub section (8) of section 57.
So far there was no dispute between the parties, but at this point the agreement between the parties ended and a controversy arose as to what was the consequence and effect of the applicability of sub section (8) of section 57 to this application made by the appellants.
There can be little doubt that under terms of sub section (8) of section 57, this application of the appellants was liable to be "treated as an application for the grant of a new permit".
But the question is: for what purpose and which of the provisions of the Act could be said to be attracted to this application by reason of the requirement that it should be treated as an application for the grant a new permit.
The argument of the respondents was that no application for grant of a new permit can be entertained by the Regional Transport Authority under section 48, unless the number of stage carriages 298 for which permits may be granted for the particular route is first determined by the Regional Transport Authority under sub section (3) of section 47, and, therefore, the consequence of treating the application of the appellants for extension of the route as an application for grant of a new permit was that no extension could be granted by the Regional Transport Authority unless the requirement of section 47 sub section (3) was first complied with and the number of stage carriages for which permits may be granted on the extended route was determined under that provision.
But we do not think this argument is well founded.
It is undoubtedly true that having regard to the several decisions of this Court and particularly, the decision in Mohd. Ibrahim vs State Transport Appellate Tribunal, Madras, the law must now be taken to be well settled that an application for grant of a new permit cannot be entertained by the Regional Transport Authority under section 48, unless the limit of the number of stage carriages for which permits may be granted is first determined under section 47 sub section (3).
There are two independent steps required to be taken in connection with the grant of a permit, the first being the determination by the Regional Transport Authority under section 47 sub section (3) of the number of stage carriages for which permits may be granted and the second being that "thereafter applications for stage carriage permits can be entertained" and, therefore, it would mean that before an application for grant of a permit can be entertained by the Regional Transport Authority, there would be a determination under section 47 subsection (3).
Ray, J., as he then was speaking on behalf of the Court observed in Ibrahim 's case (supra): "In our opinion, the provisions of the Act in regard to stage carriage permits have the following consequences.
If the Regional Transport Authority were to appoint a date for the receipt of applications for the grant of stage carriage permits, the Regional Transport Authority should fix the limit of the number of permits which might be granted and then notify the same under section 57 (2) of the Act.
If, on the other hand, applications were sent by persons suo motu for the grant of permit the applications would have to be published and the representations would have to be asked for.
The proviso of 299 section 57 (3) of the Act furnishes the answer that if the grant of any permit in accordance with the application would have the effect of increasing the number of permits beyond the limit fixed under section 47 (3) of the Act, the Regional Transport Authority might summarily refuse the application without following the procedure laid down in section 57 of the Act.
In other cases, the proper stage for fixing the limit under section 47 (3) of the Act would be after applications are received and before the same would be published under section 57 (3) of the Act asking for representations.
If however the Regional Transport Authority would not increase or modify the number of permits which already exist, the grant of an application would mean transgressing the limit fixed, and procedure laid down in section 57 (3) of the Act need not than be followed.
On the other hand, if the Regional Transport Authority on receipt of applications would decide upon the limit of permits and the grant thereof would be with in the limit prescribed then the procedure laid down in section 57 (3) of the Act would be followed.
" There can, therefore, be no doubt that if an application for varying the condition of a permit by extension of the route specified in the permit were equated wholly with an application for grant of a new permit and the permit for the extended route were to be regarded as a new permit, the procedure prescribed in section 47 sub section (3) would have to be followed and the number of stage carriages for which permits may be granted on the extended route would have to be determined before the application could be entertained by the Regional Transport Authority.
But we do not think that the prescription in sub section (8) of section 57 that an application for varying the condition of a permit by extension of the route shall be treated as an application for grant of a new permit has effect of equating such an application with an application for grant of a new permit for all purposes so as to attract the applicability of sub section (3) of section 47.
Section 57 deals with the procedure in applying for and granting permits and sub section (3) to (7) lay down the procedure which must be followed in considering and deciding, inter alia, an application for grant of a stage carriage permit.
Sub section (8) follows upon sub section (3) to (7) and is part of the same section which has a definite object and scheme of providing the procedure for considering and granting an application and therefore, when it 300 provides that an application to vary the conditions of a permit by the inclusion of new route or routes or new area or by increasing the number of trips above the specified maximum or by altering the route covered by it shall be treated as an application for grant of a new stage carriage permit it is obviously intended to incorporate and make applicable the procedure set out in the preceding sub section (3) to (7) to such an application.
The context in which sub section (8) occurs and its juxtaposition with sub section (3) to (7) in section 58 clearly indicate that what is sought to be made applicable to an application referred to in sub section (8) by treating it as an application for grant of a new permit, is the procedure set out in sub section (3) to (7) of section 58 and nothing more.
The requirement spelt out in sub section (3) of section 47 that the number of stage carriages for which permits may be granted on any particular route must be first determined before an application for grant of a stage carriage permit can be entertained by the Regional Transport Authority under section 48, is obviously not a part of the procedure for considering an application for grant of a permit; it is a condition precedent before an application for grant of a permit can be considered and granted.
This condition precedent cannot be said to have been incorporated by reference under sub section (8) of section 57.
An application to vary the conditions of a permit as set out is undoubtedly to be treated as an application for grant of a new permit, but that is only for the purpose of applying the procedure set out in sub section (3) to (7) of that section.
It is not an application for a new permit and if it is granted, the permit for the extended route does not become a new permit in the hands of the applicant.
It is the same permit which now, after the granting of the application, covers the extended route.
It may be possible to say that where a totally new route is sought to be included by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect a and substance, be an application for grant of a new permit and in such a case, a view may conceivably be taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be determined under section 47 sub section (3) before the application to vary the conditions of the permit can be entertained.
An applicant for a permit on a route which is not merely technically, but in truth and reality a different route, distinct from the original route, may not be permitted to defeat the provision enacted in section 47 sub section (3) by 301 labelling his application as one for varying the conditions of the permit and in such a case, the procedure set out in section 47 sub section (3) may have to be complied with before the Regional Transport Authority can consider and grant the application.
But where an application merely seeks a short extension of the route specified in the permit as in the present case, it would not be appropriate to say that it is an application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure set out in sub section (3) of Section 47.
We are, therefore, of the view that the High Court was in error in holding that the application made by the appellants for extension of the route specified in their permit from Satanwara to Shivpuri could not be considered by the Regional Transport Authority with out following the procedure prescribed under sub section (3) of Section 47.
We accordingly allow the appeal, set aside the judgment of the High Court as also the order made by the Regional Transport Authority and remit the case back to the Regional Transport Authority for considering the application of the appellants in accordance with law in the light of the observations contained in this judgment.
There will be no order as to costs of the appeal.
S.R. Appeal allowed.

summary/full:
The appellants held stage carriage permit granted to them by the Regional Transport Authority for the route Dabra Karera Via Lodi Mato extended upto Gwalior.
On 22 6 1978, this route for which the permit was held by the appellants was modified, at their own request, by deleting the portion of the route from Karera to Shivpuri.
By a notification dated 4 8 1978 certain routes were nationalised under Scheme No. 11 M which came into effect from 25 9 1978, including deletion of the portion of the route from Shivpuri to Satanwara, with the result the permit of the appellants remained operative only for the remaining portion of the route namely, Satanwara Gwalior Via Dabra.
Effective from 19 12 1978, the State Government issued another Notification making modifications in the route schemes.
Since this modification permitted plying of stage carriages by private operators even on a portion of a nationalised route connecting a district headquarters and not more than 20 KMs in length, the appellants made an application to the Regional Transport Authority for restoring the portion of the route from Shivpuri to Satanwara on the ground that Shivpuri was a district headquarter and the portion of the route from Shivpuri and Satanwara was less than 20 KMs.
The Regional Transport Authority rejected the said application on the ground that the Notification dated 18 12 1978 did not have any retrospective effect and therefore, the appellants were not entitled to automatic restoration of the portion of the route from Shivpuri to Satanwara.
The appellants thereupon filed an application in the prescribed form for extension of the route specified in their permit from Satanwara to Shivpuri.
The said application was rejected after hearing the objections on two grounds, namely (i) the specific order of the State Govt.
Curtailing the Satanwara Shivpuri portion of the applicants ' permit, while approving Scheme 11 M cannot be treated as having been amended by the General Amendment to the Scheme, and (ii) no extension of the route could be granted without following the procedure laid down in Section 47(3) of the Act.
This order of the Regional Transport Authority was challenged by the appellants in a writ petition filed in the High Court of Madhya Pradesh.
The High Court rejected the petition holding that by reason of the express language of Sub Section (8) of Section 57, an application for extension of the route specified in an existing permit was tantamount to an application for grant of a new permit and hence 289 it was subject to the provisions of Section 47(3) and it could not be considered without following the procedure prescribed by Section 47(3).
Hence the appeal after obtaining special leave of the Court.
Allowing the appeal, the Court HELD: 1.1 The application made by the appellants for extension of the route specified in their permit from Satanwara to Shivpuri could be considered by the Regional Transport Authority without following the procedure prescribed under Sub Section (3) of Section 47.
[297 E H] 1.2 However, under the terms of Sub Section (8) of Section 57 this application of the appellants was liable to be treated as an application for the grant of a new permit, since in effect and substance, it was an application for varying the condition of the permit by extending the route from Shivpuri to Satanwara.
But the question is for what purpose ? [297 G H] 2.1 Having regard to the several decisions of the Supreme Court and particularly the decision in Mohd. Ibrahim vs State Transport Appellate, Tribunal, Madras, , the law is well settled that an application for grant of a new permit cannot be entertained by the Regional Transport Authority under Section 48, unless the limit of the number of stage carriages for which permits may be granted is first determined under section 47(3).
There are two independent steps required to be taken in connection with the grant of a permit, the first being the determination by the Regional Transport Authority under Section 47(3) of the number of stage carriages for which permits may be granted and the second being that "thereafter applications for stage carriage permits can be entertained" and, therefore, it would mean that before an application for grant of a permit can be entertained by the Regional Transport Authority, there should be a determination under Section 47(3).
Therefore, if an application for varying the condition of a permit by extension of the route specified in the permit were equated wholly with an application for grant of a new permit and the permit for the extended route were to be regarded as a new permit, the procedure prescribed in Section 47(3) would have to be followed and the number of stage carriages for which permits may be granted on the extended route would have to be determined before the application could be entertained by the Regional Transport Authority.
[298 C E; 299 E F] 2.2 But, the prescription in Sub Section (8) of Section 57 that an application for varying the condition of a permit by extension of the route shall be treated as an application for grant of a new permit has not the effect of equating of such an application with an application for grant of a new permit for all purposes so as to attract the applicability of Sub Section (3) of Section 47.
[299 F G] 3.1 Section 57 deals with the procedure in applying for and granting permits and Sub Sections (3) to (7) lays down the procedure which must be followed in considering and deciding, inter alia, an application for grant of a stage carriage permit.
Sub Section (8) follows upon Sub Sections (3) to (7) 290 and is a part of the same Section which has a definite object and Scheme of providing the procedure for considering and granting an application and therefore, when it provides that an application to vary the conditions of a permit by the inclusion of new route or routes or new area or by increasing the number of trips above the specified maximum or by altering the route covered by it shall be treated as an application for grant of a new stage carriage permit, it is obviously intended to incorporate and make applicable the procedure set out in the preceding Sub Sections (3) to (7) to such an application.
The context in which Sub Section (8) occurs and its juxtaposition with Sub Section (3) to (7) in Section 58 clearly indicate that what is sought to be made applicable to an application referred to in Sub Section (8) by treating it as an application for grant of a new permit is the procedure set out in Sub Section (3) to (7) of Section 58 and nothing more.
[299 G H; 300 A C] 3.2 The requirement spelt out in Sub Section (3) of Section 47 that the number of stage carriages for which permits may be granted on any particular route must be first determined before an application for grant of a stage carriage permit can be entertained by the Regional Transport Authority under Section 48, is obviously not a part of the procedure for considering an application for grant of a permit; it is a condition precedent before an application for grant of a permit can be considered and granted.
This condition cannot be said to have been incorporated by reference under Sub Section (8) of Section 57.
An application to vary the conditions of a permit as set out in Sub Section (8) of Section 57 is undoubtedly to be treated as an application for grant of a new permit, but that is only for the purpose of applying the procedure set out in Sub Sections (3) to (7) of Section 57.
It is not an application for a new permit and if it is granted, the permit for the extended route does not become a new permit in the hands of the applicant.
It is the same permit which now after granting of the application covers the extended route.
[300 C F] 3.3 Where a totally new route is sought to be included by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect and substance, be an application for grant of a new permit and in such a case, a view may conceivably be taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be determined under Sub Section (3) of Section 47 before the application to vary the conditions of the permit can be entertained.
[300 F H] An applicant for a permit on a route which is not merely technically, but in truth and reality a different route, distinct from the original route, may not be permitted to defeat the provision, enacted in Sub Section (3) of Section 47, by labelling his application as one for varying the conditions of the permit and in such a case, the procedure set out in Section 47 (3) may have to be complied with before the Regional Transport Authority can consider and grant the application.
[300 H; 301 A] 291 But where an application merely seeks a short extension of the route specified in the permit, as in the present case, it would not be appropriate to say that it is an application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure set out in Sub Section (3) of Section 47 of the Motor Vehicles Act.
[301 B C]