The Supreme Court held that the proviso to Section 58(2) and Sections 57 and 29 apply to permit renewals under Section 68F(1D), but the RTA lacks discretion to condone delays beyond 15 days.
Regional Transport Authority was right in rejecting the application for renewal as time-barred.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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-Delayinapplyingforrenewal ofexistingpermit-I/could be condoned-ChapterIVA ,-Ifa self contained _code-Renewalapplication underS._68F(ID)-Whether_s.57_applicable. |
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| _LimitationAct,_1963-Ss.5and29(2)-lfapplicable. | |
| Under the proviso tos.58(2)ofthe Motor Vehicles Act, 1939 an applica- tion for renewalofan existing permit shallbemade not less than 120 daysbe' fore the date of expiryofthe permit.Theproceduretobefollowedinthis respectisthe sameasprovided ins.57for the grant of a fresh permit.Under s.58(3)adelayofnot more than15days in making the renewal application can.becondoned by the Regional Transport Authority. |
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| The proviso to s.6SF(ID)provides for the renewal of an existing permit fora limited period when a Schemeispublished unders.68C. Since a Scheme was published under this section the appellant made an application unders.68F (lD)for renewalofhis permit.Itwas rejected by the RTAonthe ground that there was delayof18days which wasnotcapableofbeing condoned. The State Transport Appellate Tribunal dismissed his appealandthe HighCourt summarily rejected his writ petition. |
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| Inappeal to this Court itwruicontendedthat(i) Chapter IVA oftheAct, in whichs.68 occurs, being a self-contained code the proviso to s. 58(2) was not applicable . in thecaseofan application for renewal filed under the provisoto s.68F(ID)or{ii)in the alternative the delay could be condoned by theRTA for sufficient cause unders._5_readwiths.29(2)ofthe Limitation Act, 1963. Dismissing the appeal, |
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| HELD:(!)(a)Section 68F(1D) imposes a prohibitionongrantorrenewal of permit during the intervening period betweenthepublicationofascheme under s.68C and the publicationofthe approved scheme and if the proviso were not enacted, renewalofan existing permit expiring after the publicationofthe schc:meunders.68C would have been barred. This, the legislature did not want andlhence the proviso was introduced permitting renewal of an existing permit though foralimited period, despite the general prohibition enacted in oub-s.(ID). l11isrenewal was not intendedtobe some special kind of renewal. Thereis- no reason why the provisionsofs.57and the proviso tos.58(2) shouldnot apply inCal!eofa renewal application under the proviso tos.68F(1D). . [569 A-BJ |
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| (b)Chapter IVAisnot a self-contained code and the other sections apply to an application under the proviso tos.68F(lD)of theAct.[569D] |
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| (i) The procedure ins.57.applies because, thereisno other procedure pres- cribed by the Act. [569CJ |
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| (ii)The time limit specified in the proviso tos.58(2) also applied as other- wise:there would be no timelimitfor making an application for renewal. [5690] (iii)Section68F(3)also proceeds on the assumption that,butfor its enact- ment, an order made by the RTA under sub-3(1)or(2)ofs.68F would have been appealable unders.64anditwas toexclude the applicabilityofs.64that 68F(3)wasenacted. [569 E-F] |
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A ~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, thugh not more than 15 days. It could never have been the ntentio!l of the le1Sla_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]
<b) .There is an express provision in sub-s. (3) that delay in making an ·C 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 No. 2128/73).
G. N. Dikshit and 0. P. Rana for Respondents No. 1 and 2. The Judgment of the Court was delivered by
·E 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 .F 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 G 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 :
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"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
MOHD. ASHFAQ v. STATE TRANSPORT (Bfwgwati, J.) 565
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. area or route or portion thereof specified in the said scheme, 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 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 (2) of section 68D is made.·
(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 a scheme published under section 68C expires after such 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 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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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.
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 subG section (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 H 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 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 <.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 .
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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 rehlts 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
A after publiation 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 B 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 c 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 D 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 E 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 F 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 G 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 reneH wal 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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MOHD. ASHFAQ v. STATE TRANSPORT (Bhagwati, J.) 569
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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.
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 follows:
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"(2) A permit may be renewed on an application made
[1977) 1 S.C.R.
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SUPREME COURT REPORTS
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<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
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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 ReE gional 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 F 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 G 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 H 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 Lmita 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).
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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
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3 issues framed by the court
Whether the proviso to Section 58(2) of the Motor Vehicles Act, 1939 is applicable to an application for renewal filed under Section 68F(1D).
Whether the Limitation Act, 1963 applies to condone a delay in renewal of a transport permit exceeding 15 days.
Whether Chapter IV-A of the Motor Vehicles Act, 1939 is a self-contained code excluding other provisions of the Act.
7 provisions across 2 enactments
Mohd. Ashfaq
State Transport Appellate Tribunal U.P.
P. N. Bhagwati
S. Murtaza Fazal Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
