Amloh Bus Service Registered vs The State Transport Appellate Tribunal

M.L. Singhal, J.—This is civil writ petition filed under Articles 226/227 of the Constitution of India by Amloh Bus Service Registered, Gobindgarh through its Managing Director Shri Radhey Sham whereby challenge is directed against the order dated 23.4.1990 (Annexure P-3) and order dated 26.9.1996 (Annexure P-4) passed by the State Transport Commissioner, Punjab exercising the powers of Regional Transport Authority for Patiala and the State Transport Appellate Authority Punjab, Chandigarh respectively. Mandamus has also been claimed by the petitioner directing respondent No. 2 to grant one regular stage carriage permit for plying one return trip daily on Ahmedgarh to Chandigarh route in its favour. It is alleged in this petition that the petitioner is actively engaged in the business of operating stage carriage services in the State of Punjab on the basis of regular stage carriage permits issued to them from time to time under the provisions of the Motor Vehicles Act. Two separate schemes envisaging progressive nationalisation of road transport were in operation in the State of Punjab. These schemes were popularly known as the 60:40 scheme. These schemes expired in the years, 1976 and 1977 respectively, without either the State Undertakings taking over operations from the private operators or the Government approving any further scheme. In the absence of any transport policy, the State of Punjab adopted the practice of issuing temporary stage carriage permits on single file basis for a period of 4 months at a time. Without inviting any applications permits were being granted in favour of State Undertakings. Matter was finally taken to the Hon''ble Supreme Court of India which in a judgment reported as Jagjit Bus Service (Regd.), Amritsar through its Managing Partner Shri Jagjit Singh Vs. State Transport Commissioner, Punjab and Another, delivered on 27.7.1987 ordered the cessation of all temporary permits and directed the grant of regular stage carriage permits on all those routes where the need of the travelling public was of a permanent nature. In pursuance of the said judgment, applications for the grant of one regular stage carriage permit were invited through a notice which appeared in Motor Transport Gazette (Weekly), Chandigarh dated 1.1.1988 (Annexure P-1). It was indicated in the notice that applications should reach the office within 30 days of the date of publication of the notice and that incomplete and time barred application will not be entertained. In response to the notice, 19 operators including the petitioner applied for the grant of permit. The contents of the applications were then published in the Motor Transport Gazette (Weekly) on 15.2.1988 inviting objections from all concerned. Annexure P-2 is the publication of the contents of the applications. Respondent No. 3 did not make any application for being considered for the grant of permit. In a meeting held on 27/28.10.1988, matter was placed before respondent No. 2 i.e. State Transport Commissioner Punjab for consideration but was postponed due to paucity of time. Respondent No. 3 appeared to have written a letter dated 2.2.1989 submitting an application for the grant of one permit. This application was never published for the purpose of inviting objections and it was barred by time. Matter was placed before the State Transport Commissioner Punjab in the meeting which was held on 14.3.1989 but the hearing was again postponed. Motor Vehicles Act 1939 was repealed by an Act of Parliament and the new Motor Vehicles Act, 1988 came into force with effect from 1.8.1989. According to Section 80 of the new Act complete liberalisation was brought about in the matter of grant of stage carriage permits. The provisions of Section 80 of the Motor Vehicles Act, came up for consideration in Mithilesh Garg, Vs. Union of India and others etc. etc., in which it was laid down. that the permits are required to be granted at the asking of the intending operators. In April, 1990 the matter came up for final hearing before respondent No. 2. Petitioner submitted for the grant of permit in view of the law laid down in Mithilesh Garg, Vs. Union of India and others etc. etc., . By an order dated 24.4.1990 permit was granted in favour of respondent No. 3 who had not even applied in time and presence of the representative of the petitioner was not recorded although representative of the petitioner was present before respondent No. 2 who passed order Annexure P-3. Petitioner after obtaining certified copy of the order Annexure P-3 filed an appeal before the State Transport Appellate Tribunal Punjab, Chandigarh, urging that once there was complete liberalisation on the date when case was taken up for consideration in accordance with Section 80 of the Motor Vehicles Act, permit could not have been refused to the petitioner and had to be granted to the petitioner. State Transport Appellate Tribunal, however, dismissed the appeal by an order urging that petitioner had not challenged the grant of permit in favour of P.R.T.C. at the time of arguments before the State Transport Appellate Tribunal as is mentioned in the impugned order passed by the State Transport Appellate Tribunal. Route in question falls on the portion of monopoly route of the Pepsu Road Transport Corporation and permit cannot be granted on the portion of monopoly route of the State Transport Undertaking to any private operator against the transport policy. Route in question is the Inter State Route and Inter State Route is to be exclusively operated by the State Transport Controller. Before the State Transport Appellate Tribunal, petitioner never agitated against the grant of permit to respondent No. 3 i.e. P.R.T.C. Petitioner never submitted before the State Transport Appellate Tribunal, that there is no limit of Inter State Route and further the law as applicable at the time of granting the permit was not applied properly. Petitioner has no right to maintain this petition as it itself had never pressed that application for the grant of permit before respondent No. 2. Permit so granted to respondent No. 3 was not challenged at the time of arguments before the Appellate Authority.

Respondent No. 2 contested the writ petition, urging that the proposed route happened to be an Inter State Route, as such, the regular stage carriage permit on the route has rightly been issued in favour of Pepsu Road Transport Corporation. Chapter VI has overriding effect over Chapter V as per provision u/s 98 of the Motor Vehicles Act, 1988. When the Transport Scheme was framed u/s 99 of the Act under chapter VI (ibid) the permits are required to be granted according to the scheme and not according to the liberal policy as enunciated in Mithilesh Garg, Vs. Union of India and others etc. etc., .

We have heard learned counsel for the parties and have, gone through the record.

Section 47 of the Motor Vehicles Act, 1939 lays down that the Regional Transport Authority in considering an application for a stage carriage permit shall have regard to the following matters namely:-

(a) the interest of the public generally;

(b) the advantage to the public of the service to have provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;

(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means between the places to be served;

(d) the benefit to any particular locality or localities likely to be afforded by the service;

(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;

(f) the condition of the roads included in the proposed route or area; and shall also take into consideration any representation made by persons already providing passenger transport facilities by any means along or near the proposed route or area; or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies.........

(3) A Regional Transport Authority, may having regard to matters mentioned in sub-section (1), limit the number of stage carriages generally or of any specified type for which state carriage permits may be granted in the regional or in any specified area or on any specified route within the region.

The old Act has repealed by the new Motor Vehicles Act, 1988 which came into force on 1.7.1989. The statement of objects and reasons appended to the Act is reproduced as under:-

"The Motor Vehicles Act, 1939 (4 of 1939), consolidates and amends law relating to motor vehicles. This has been amended several times to keep it up to date. The need was, however, felt that this Act should now inter alia, take into account also changes in the road transport technology, pattern of passenger and freight movements, development of the road network in the country and particularly the Improved techniques in the motor vehicles management.

(2) Various Committees like National Transport Policy Committee, National Police Commission, Road Safety Committee, low powered two-wheelers committee, as also the Law Commission have gone into different aspects of road transport. They have recommended updating, simplification and rationalisation of this law. Several Members of Parliament have also urged for comprehensive review of the Motor Vehicles Act, 1939 to make it relevant to the modern day requirements.

(3) A working Group was, therefore, constituted in January, 1984 to review all the provisions of the Motor Vehicles Act, 1939 and to submit draft proposals for comprehensive legislation to replace the existing Act. This working Group took into account the suggestions and recommendations earlier made by various bodies and institutions like Central Institute of Road Transport Automotive Research Association of India, and other transport organisations including the manufacturers and the general public. Besides, obtaining comments of State Governments on the recommendations of the Working Group, these were discussed, in a specially convened meeting of Transport Ministers of all States and Union Territories. Some of the more important modifications so suggested related for taking care of -

(a) and (b)........................

(c) the greater flow of passenger and freight with the least impediments so that islands of isolations are not created leading to regional or local imbalances;

(d).................

(e) simplification of procedure and policy liberalization for private sector operations in the road transport field; and

(f)............

The proposed legislation has been prepared in the light of the above background. Some of the more important provisions of the Bill provide for the following matters, namely:

(a) to (f)................

(g) liberalised schemes for grant of stage carriage permits on non-nationalised routes, all India tourists permits and also natural permits for goods carriages........

(h) to (i)....................

Section 80(2) of the Motor Vehicles Act, 1988 lays down that the Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act, provided that the Regional Transport Authority may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the Official Gazette under clause (a) sub-section (3) of Section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of subsection (3) of Section 74. Provided further that where a Regional Transport Authority refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter. In the new Act, the procedure for the grant of permits has been liberalised to such an extent that an intending operator can get a permit on his asking irrespective of number of operators already in the field. There is a provision u/s 71(3)(a) of the Act under which a limit can be fixed for the grant of permits in respect of routes which are within a town having population of more than five lacs.

In Mithilesh Garg, Vs. Union of India and others etc. etc., the facts were that Mithilesh Garg was holding a stage carriage permit and was plying his vehicles in the Meerut Parikshitgarh-Hasifabad-Laliana and allied routes under the jurisdiction of the Regional Transport Authority, Meerut. According to him, prior to the enforcement of the Act, 23 permit-holders were operating on the said route but thereafter u/s 80 of the Act, the Regional Transport Authority, Meerut had issued 272 more permits in respect of the same route. The Hon''ble Supreme Court held that a comparative reading of the provisions of the Motor Vehicles Act, 1988 and the old Act of 1939 makes it clear that the procedure for grant of permits under the new Act has been liberalised to such an extent that an intending operator can get a permit for asking irrespective of the number of operators already in the field.

The scheme envisaged under Sections 47 and 57 of the old Act has been completely done away with by the Act. The right of existing operators to file objections and the provision to impose limit on the number of permits have been taken away. There is no similar provision to that of Section 47 and Section 57 under the new Act. The statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalise the grant of permits. On the strength of Kasireddy Varahalu Vs. State of Andhra Pradesh Home (Transport III) Department, Hyderabad by its Secretary and Others, learned counsel for the petitioner submitted that on 23.4.1990, when the case for the grant of one return trip daily on Ahmedgarh to Chandigarh route for a period of three years was being considered, new Act had come into force and therefore application for the grant of stage carriage permit on this route should have been considered in view of the provisions of the new Act.

Learned counsel for the respondents, on the other hand, submitted that the provisions of new Act should not govern the grant of stage carriage permit, because the applications had been invited prior to. 1.7.1989 i.e. prior to the coming into force of the New Act. In our opinion, new Act should govern these applications so far as this case is concerned but if the route falls on the portion of monopoly route of P.R.T.C. permit cannot be granted on the portion of the monopoly route of the State Transport Undertaking to private operator against the transport policy. Inter State Route is to be exclusively operated by the State Transport Controller.

It was submitted by learned counsel for the petitioner that there is no limit to the grant of permits on Inter State Route. Chapter VI of the Motor Vehicles Act, 1988 has over-riding effect over Chapter V as per provisions of Section 98 of the Motor Vehicles Act, 1988. When the Transport Scheme was framed u/s 98 of the Motor Vehicles Act under Chapter VI permits are required to be granted according to the scheme and not according to the liberal policy as enunciated in Mithilesh Garg, Vs. Union of India and others etc. etc., .

Transport Scheme came into force through notification dated 9.8.1990 No. S.O. 41/C.A.59/88/S. 100/90 which lays down that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in relation to certain areas and routes should be run and operated by the State Transport Undertaking to the complete or partial exclusion of other persons.

And whereas in exercise of the powers conferred by Section 99 of the Motor Vehicles Act, 1988 (Central Act No. 59 of 1988), the proposals regarding a scheme for the aforesaid purpose were formulated and objections thereto were invited as required u/s 10 of the foresaid Act, vide Government of Punjab, Department of Transport Notification No. S.O. 73/CA.59/88/S. 99/89, dated the 11th August, 1989.

And whereas the objections received in response to the proposals have been considered by the Government of Punjab. 13. Now, therefore in exercise of the powers conferred by Section 100 of the Motor Vehicles Act, 1988 (Central Act No. 59 of 1988), the President of India is pleased to notify the following scheme namely

''Scheme''

(1) In the scheme, unless the context otherwise requires :-

(a)................

(b) Appointed day means 9th of August, 1990.

(c) ''monopoly routes'' means the routes specified in Annexure ''A''. Ahmedgarh-Chandigarh is monopoly route as it is inter-State route as also portion of this route falls in the route operated by the PRTC alone.

Clause 2 of the scheme in so far as it is relevant for this case says that all inter-State routes shall be operated by the State Transport Undertakings and operation of private operators whose permits were valid for a period of three years from the date of the publication of the scheme shall remain unaffected.

Learned counsel for the respondents submitted that the petitioner never agitated against the grant of permit to respondent No. 3. It is true that the petitioner never agitated against the grant of permit to respondent No. 3. At page 31 of the paper book learned State Transport Appellate Tribunal had observed that the learned counsel for the Amloh Bus Service Registered, Gobindgarh does not challenge the grant of permit in favour of P.R.T.C. Route granted to P.R.T.C, thus, was not challenged and there was no additional permit to be granted to the petitioner.

For the reasons given above, this petition fails and is dismissed.