Pankaj Yaid vs State & Ors.

The petitioner who has claimed to be a leading transporter of the State has prayed for the issuance of an appropriate direction quashing letter/

order No. 88I/RTOJ dated 4.6.1993 and No. 1178/RTOJ dated 186.1993 whereby his application for replacement of the vehicle was rejected.

He has further prayed that a command be issued to the respondents to allow replacement of the Vehicle No : 2585/JKS covered under Route

Permit No. 7MB/RTOJ dated 15111988 with vehicle No. |9649/JKS in terms of the provisions of Sec. 83 of the Motor Vehicles Act, 1988 and

rule 93 of the rules framed there under.

The Petitioner submits he is in possession of Route Permit bearing No. 7MB/RTOJ dated 5.11.1988 which authorizes him to ply vehicle No.

2585/JKS on point to point basis between Jammu and Katra. The petitioner has submitted that he owns another luxury bus bearing No. JKS9649

which was being operated under All India Tourist Permit from Srinagar to Delhi. The said bus is claimed to be most luxurious and comfortable with

seating capacity of 35 person upon which the*petitioner is stated to have spent a sum of about Rs. 7 lacs. After the conditions in the Kashmir

valley had worsened, operation of the aforesaid vehicle covered by the national permit became uneconomical and the petitioner decided to sell

vehicle No. 2585/JKS and in its place ply luxury bus No. 9649/JKS between Katra and Jammu against Route Permit No; 7MB/RTOJ. The

petitioner made an application in terms of Sec. 83 of the Motor Vehicles Act read with Sec. 93 of the Motor Vehicles Rules (hereinafter referred

to as the Act and the Rules respectively praying to the Regional Transport Authority (RTA for short) for replacement of Vehicle No. 9649/JKS.

The seating capacity of vehicle No. JKS2585 was 43 and its wheel base 166"" whereas the seating capacity of vehicle No. 9649 JKS is 35 with

wheel base of 205"". It is submitted that despite his application no action was taken by the respondents with the result that the various reminders in

the form of Annexures PC to PF were sent to the respondents who ultimately informed the petitioner vide their letter dated 461993 that prayer for

replacement had been rejected. The petitioner again addressed letter dated 761993 to the Member/Secretary of the RTA requesting for

reconsideration of his case in the light of the relevant provisions of the Act and the Rules on the subject. The Member/Secretary vide his letter

dated 1861993 again informed the petitioner that his case had been reconsidered and rejected by the RTA. It is submitted that action of the

respondents is illegal, arbitrary and unjustified being in violation of the petitioner's statutory and fundamental rights which requires immediate

directions from this Court. It is submitted that as the order has been passed at the back of the petitioner without affording him an opportunity of

being heard same is liable to be quashed. The orders impugned are alleged to have been issued in a mechanical fashion and without application of

mind which are contrary to the provisions of Sec. 83 of the Act and rule 93 of the Rules. It has further been contended that the action of the

respondents being violative of the provisions of Article 14 of the Constitution of India, is required to be rectified. As the respondentauthorities are

alleged to have acted in an irrational manner resulting in discrimination, it has bean prayed that appropriate directions be issued for redressal of the

grievance of the petitioner. It is submitted that in case of another transporter engaged in similar business, namely, M/S Bodh Raj Tej Ram, the

respondents allowed their bus No, 9247/ JKP with seating capacity as 43 with wheel base 166"" to be replaced by Bus No. 6109/JKQ with

seating capacity of 35 with wheel base 205"". Again that bus was replaced by another bus bearing No, 7576/JK.S with seating capacity of 35 and

wheel base of 205"" on 12101991 (Annexure PJ). In another case the bus belonging to the aforesaid transporter was allowed to be replaced with

bus No. 5851/JKQ which had the seating capacity of 35 with wheel base 205"". It has been contended that the routepermit in favour of M/S Bodh

Raj Tej Ram was also on point to point basis from Jammu to Reasi but upon replacement, the vehicles were allowed to ply only upto Katra. It is

contended that the route from Jammu to Katra is highly lucrative route and replacement in favour of the aforesaid transporter by limiting his route to

Katra in place of Reasi was done with ulterior motive of conferring undue benefit upon them. It is further contended that one R.N. Dogra was

granted a fresh route to ply a bus with seating capacity as 35 and wheel base 205"" on point to point basis from Jammu to Katra. It is contended

that the route from Jammu to Katra has been monopolized by the aforesaid two bus operators in collusion with the RTA whose members are

stated to be protecting, for obvious reasons, the business interests of M/s Bodh Raj Tej Ram. The case of the petitioner is claimed to be similar to

those of the aforesaid two transporters and there was no justification for rejecting his application for replacement and allowing the same in case of

other operators.

In the objections filed on behalf of the respondents it is submitted that any person aggrieved by the order of refusal of the RTA has an alternate

efficacious remedy of filing an appeal Sec. 89 of the Act, before the State Transport Appellate Tribunal. The petitioner, in fact, has available of the

remedy of filing the appeal and is, therefore, debarred from prosecuting this writ petition. It is submitted that under the Old Act of 1939, efforts

were made to ply the vehicles having point to point route permits on zonal basis by rotation with regard to hilly areas and the arrangement worked

satisfactorily, The system is stated to have brought a good deal of relief to the traveling populace by ensuring smooth, convenient and regular bus

service. The Jammu division has been divided into 5 zones, namely, (1) JammuBanihal), (2) JammuR.S. Pura, (3) JammuKathua, (4) Jammu

Poonch and (5) JammuChhumb). The RTA formulated a policy in their meeting on 19.3.1992 to avoid amongst others the monopoly of the

transporters and according to this policy stage carriage permits are being issued for area operations only and not for any particular lucrative route

on point to point basis. It is submitted that this policy has been approved by this Court in Writ Petition No. 231/92. The interim order passed In

Writ Petition No. 235/92 was kept in abeyance by a Division Bench. Rule 82 of the Rules (Central), permits a transporter to make an application

for grant of permit in respect of tourist vehicles m Form45 to the RTA. However, it is provided therein, amongst others, that a tourist permit shall

be deemed to be invalid after 5 yearn. The said rule is stated to have been amended vide notification GSR338 (E) dated 26393 by which the

permit has been held to be valid for a period of 7 years. It is submitted that as no fundamental or legal right of the petitioner as has b""en violated,

his petition is liable to be dismissed. It is admitted that vehicle No: JKS/2585 was granted a permit on point to point basis for Jammu to Katra but

because of the policy the vehicle was not being plied from point to point and was allotted JammuBanihal route which included Jammu Katra as

well. The deposit of the route permit with the RTA is admitted but it is denied that vehicle being No. 9649/JKS was plying from Srinagar to Delhi

only. It is admitted that the seating capacity of the luxurious coach is 35 persons whereas the seating capacity of vehicle No. JKS/2585 was 43

passengers. The averments regarding the wheel base of the two vehicles has been admitted. It is contended that no vehicle can be permitted to ply

from point to point because if this practice is allowed, same shall be against the public policy. It is further contended that if the vehicles are

permitted to ply from point to point that no vehicle will ply on hilly and far flung areas having kacha roads with the result that the people living in

those areas would be deprived of transport facilities. Making of the application by the petitioner on 621892 for replacement of the vehicle has

been denied and it is submitted that vehicles No. JKS/2585 and No. 9649/JK.S are not of the same nature. The applications of the petitioner

dated 1041993, 1951993 and 761993 are admitted to have been received by the respondents. The case of the petitioner was rejected or,

2451993 after proper appreciation of the rules, intimation of which was given to the petitioner. The application of the petitioner dated 76 1993

was rejected by a comprehensive order dated 186i9J3. The respondents have claimed that their action is justified which does not require any

interference. Even though no personal hearing was necessary, yet, the petitioner's representations made from time to time were considered and

later on rejected. It is submitted that the rejection has not been made in a mechanical fashion or without application of mind but is based upon

proper appreciation of the provisions of law. The plea of the petitioner that there has been violation of the provisions of Art. 14 of the Constitution,

has been vehemently denied It is, however, submitted that only three vehicles beating registration Nos. JKS5769, 5776JKS and 7687JKQ are in

operations. Vehicle No, JKP 2461 was replaced by vehicle No. JKS5851. Vehicle No. JKS5851 was replaced by vehicle No. JKS 5769 which

is operative under permit. No. 22MB/RTOJ. No fresh permit has been issued but only replacement has been allowed. The replaced vehicle is

stated to be having the seating capacity of 35 passengers and wheel base of 205"" like vehicle No. JKQ58S1. Vehicle No. 7576JKS is operative

against Route permit No. 194/JP/RTAJ (363). Previously vehicle No. 9247JKP was covered by this route permit, and was replaced by vehicle

No. 6197JKQ and again by JKS7576. The replacement of bus No. 9247JKP by bus No. 6109JKQ was done under the old Act (of 1939) and

the rules there under and also in the absence of any public policy allowing the plying of vehicles only on Zonal basis. Has No. 6109JKQ was

replaced by bus No. 7576JKS which is of the same nature. Averments with regard to favour shown by the respondents to M/s Bodh Raj Tilak

Raj, have been denied. It is wrong that the route beyond Katra is uneconomical. So for as the routepermit issued in favour of R N. Dogra is

concerned, it is submitted that the order was made by the State Government in appreciation of the exceptional gallantary services rendered by him

in the defiance of the country in recognition of which Vir Chakra was conferred upon him. Ij is further submitted that in the rode permits of the

aforesaid three cases a note has been made that those will not be renewed and replaced further on the expiry of the existing period of the

routepermits which is to expire by the end of March, 1994. The petitioner's case is not identical as those of the aforesaid persons. The writ petition

is stated to be misconceived and liable to be dismissed.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the respondents have raised a preliminary objection regarding the maintainability of the writ petition in view of the avails ability

of the alternate efficacious remedy to the petitioner under the Act. It is well recognized position of law that as the remedy under Art. 226 of the

Constitution in general is discretionary, the High Court can refuse to grant the relief where there exists an alternate remedy, equally efficient and

adequate unless there are good grounds to the contrary. Dealing with the powers of the High Court under Art. 226 of the Constitution and the bar

to entertain petitions on the existence of alternate remedy, the Supreme Court in A.V. Venkateswaran V.R.S. Wadawani (AIR 1961 SC 1506), at

length, held :

The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine

because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned

SolicitorGeneral was that the existence of an alternative remedy was a bar to the entertainment of a petition under Art. 226 of the Constitution

unless (1) there was a complete lack of jurisdiction in the officer or authority to take action impugned, or (2) where the order prejudicial to the writ

petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or nonest. In all other cases, he

submitted, courts should not entertain petitions under Art. 226 or in any event 0ot grant any relief to such petitioners. In the present case, he

urged, the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge a? regards the lack of jurisdiction of the

Customs Officer to adjudicate regarding the item under which the article imported fell and the duty leviable thereon.

Nor was there any complaint in this case that the order had been passed without an opportunity to the importer to been heard, so as to be in

violation of the principles of natural justice. The learned Solicitors General questioned the correctness of the reasoning of the learned Chief Justice

in condoning the conduct of the respondent in not moving the Government in revision by taking into account the time that had elapsed between the

date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner

under Art. 226 having to exhaust his remedies before he approached ** court would be practically a dead letter because in most cases by ""ht date

the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed.

We see considerable force in the argument of the learned Solicitor General. We must, however point out that the rule that the party who applies for

the issue of a high prerogative writ should. before he approached the court, have exhausted other remedies open to him under the law, it not oat

which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the

exercise of their discretion. The law on this matter has been enunciated in several decisions of this court but it is sufficient to refer to two cases. In

Union of India V.T.R, Varma, 1958 SCR 499 at pp. 513504 : (S) AIR 1957 SC 882 at p. 884) Venkatarama Ayyar speaking for the Court said

:

It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not

invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the

jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed V. Municipal Board, Kairaca, AIR 1950 SG 163, the

existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. Vide also K.S. Rashid and Son V.

The IncomeTax Investigation Commission, AIR 1954 SC 207. And where such remedy exists, it will be a sound exercise of discretion to refuse to

interfere in a petition under Art. 226 unless there are good grounds therefore"".

Time is no difference between the above and the formulation by Das, C,J. in State of Uttar Pradesh V. Mohammad Noon, 1958 SCR 595 at pp.

605.607; (AIR 1958 SG 86 at p.930), where he observed :

....It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other

equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie Although a right of appeal has been

confirmed by statutes The fact that the aggrieved party has another and adequate remedy may be taken Into consideration by the superior court In

arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of

inferior courts subordinate to it and ordinarily the superior court will decline to interfere untill the aggrieved party has exhausted his other statutory

remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and

discretion rather than a rule of law and instances are numerous whereas writ of certiorari has been issued inspite of the fact the aggrieved party had

other adequate legal remedies.

After referring to a few cases in which the existence of an alternates remedy had been held not to bar the issue of a prerogative writ, the learned

Chief Justice added:

It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case

obtain a review by certiorari.

In the result this court held that existences of other legal remedies was not peruse a bar to the issue of a writ of certiorari and that the court was not

bound to relegate the petitioner to the other legal remedies available to him.

The passages in the judgments of this court we have extracted would indicate (I) that the two exceptions which the learned Solicitor General

formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even

beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of

an alternative remedy. We need only add that the broad lines of the general principles on which the court should act having been clearly laid down,

their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper

exercise of the discretion of the court, and that in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would

not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court.

The question as to whether the alleged alternative remedy is equally efficacious or adequate is a question of fact to be decided in each individual

case under specified circumstances. The onus to show that the alternative remedy was neither efficieutnor or adequate, is upon the party who

approaches the court for invoking the jurisdiction under Art. 226 of the constitution. The remedy under Article 226 should not be entertained

unless it is shown that the alternative remedies are illsuited to meet the demands of an extra ordinary situation where the very vires of the statute is

questioned or where the wrong complained is so inextricably mixed up with the prevention of public injury and the vindication of public justice

requires that the recourse may be had to the constitutional remedy or where the alternative remedy is not affective or adequate.

The objection regarding the maintainability of the writ petition in view of the pendency of the appeal, was considered by the Supreme Court in

Municipal Council, Khurai and anr. V. Kamal Kumar and anr. AIR 1965 SC 13 1 while rejecting the objections, their Lordships held :

Before us it is contended by Mr. Setalvad on behalf of the Council that an appeal had already been preferred by the respondents against the

assessment list and, therefore, they were not entitled to any relief under Article 226 of the Constitution, It is thus that the High Court would not

ordinarily entertain a petition under Article 225 of the Constitution where the alternative remedy is open to the aggrieved party. Though that is so

the High Court has jurisdiction to grant relief to such a party if it thinks proper to do so in the circumstance of the case. In the present case the High

Court has chosen to exercise discretion in favour of the respondents and it would not be right for us to interfere with the exercise of that discretion

unless we are satisfied that the action of the High Court was arbitrary or unreasonable. Nothing has been brought to our notice from which it could

be inferred that the High Court acted arbitrarily ia granting the writ prayed for to the respondents.

Similarly in Ram and Shyam Company T. State of Haryana and AIR 1885 SC 1147, it was held:

Ordinarily it is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking

the jurisdiction has an effective, adequate alternate remedy. More often, it has been expressly stated that the rule which requites the exhaustion of

alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the court. Where

the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely abated by it,

would He to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the

State Government. As appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction

between jurisdiction and merits.

To the same effect are the judgments reported in AIR 1969 3C 556: AIR 1971 M.P. 16: AIS 1972 All. 16: AIR 1972 Orissa 08 : AIR 1972

J&K 12 and A1& 1175 Orissa 18.

Learned counsel for the respondents has relied upon the judgments reported in AIR 1977 SC 1703: A[R 1985 SO 300: 1987 KLJ 540 and an

unreported judgment of this court in writ petition No. 653 of 1992Oriental Insurance Co. V. Krishen Dev and others decided on 391992'

In 1937 KLJ 540 this court observed that the High Court should be slow in exercise of its extra ordinary jurisdiction under Art. 226 of the

Constitution of India where an appropriate remedy was equally efficacious remedy is available under a given Act and such limitation was more

permanent in the matters involving revenue where legislative intent was clearly apparent in the relevant provisions of the Act prescribing remedy in

mandatory terms. The court cannot normally without there being good and sufficient reasons by pass the alternative remedy provided by the

Statute itself. Similarly in writ petition No. 653/92 (Supra) this court held that the court can refuse to entertain petitions under Article 226 where it

is found that the petitioner had an alternative remedy and his conduct was such which did not deserve discretionary remedy to be provided as he

has misrepresented or suppressed material facts, thus, misleading the court or where the disputed facts are required to be investigated. In AIR

1985 SC 300 (supra) it was held that Art. 226 is not meant to shortcircuit of circumvent the statutory procedure, ft is only where statutory

remedies are entirely illsuited to meet the demands of extra ordinary situation that this court would interfere in exercise of its powers under Art. 226

of the Constitution. It is, therefore, evident that there is no absolute bar for this court to exercise jurisdiction under Art. 226 of the Constitution and

the question of existence of alternative remedy has to be decided with reference to the facts and circumstances of each individual case.

In the instant case, the petitioner without suppressing any fact, has submitted that he has preferred an appeal before the state Transport Appellate

Tribunal at Srinagar which has, however passed no orders in the appeal till the date of filing of the petition. ""It is submitted that the conditions in the

valley are not at all conducive to go to Srinagar personally to follow the case before the said tribunal. There is no possibility of the aforementioned

appeal being disposed of in the near future..............In these circumstances the petitioner has no option except to invoke the extra ordinary writ

jurisdiction of this Hon'ble Court by way of the present writ petition."" The petitioner has also filed a copy of the memo of appeal as Annexure PK

to the writ petition and the averments made in the para have not been denied by the respondents. It has been urged at the bar that under the

present circumstances it was not possible to prosecute the appeal before the tribunal at Srinagar, It has further been conceded that the present

presiding officer of the court, namely, Qazi Musarfar Din has since been transferred and no other officer has taken charge in his place I am

therefore , if the opinion that it is fit case in which the power under Art. 226 of the Constitution can be exercised as the petitioner has no efficacious

effective or alternative remedy available for the redresal of his grievances.

In the instant case, the facts are almost admitted and only interpretation of the relevant provisions of the Act and the rules framed there under is

required to be made. It is not disputed that the petitioner has routepermit in his favour bearing no. 7MB/RTOJ dated 5.11. 988 issued for point to

point basis between Jammu and Katra which has neither been cancelled nor rescinded or suspended. It is also not disputed that no vehicle is plying

on the said routepermit. It is the admitted position that the vehicles belonging to M/S Bodh Raj Tej Ram have been permitted to ply on point to

point basis between Jammu and Katra and their vehicles have the capacity of 35 seats and wheel base of 205."" The issuance of a route permit in

favour of R.N. Dogra is also not denied though his case is not relevant for the purposes of deciding this petition because he has been issued with a

new permit. However, the case of the petitioner and those of M/S Bodh Raj Tej Ram are identical as both had the vehicles with seating capacity of

43 with wheel base of 166"" but in the letters case two vehicles were permitted to be replaced with vehicles of seating capacity of 35 with wheel

base of 205. ""The petitioner has also prayed for the replacement of his vehicle on the analogy and the plea that he should also be permitted to

replace the vehicle as was done in the case of M/s Bodh Raj Tej Ram and the respondents were not entitled to make discrimination between

similarly 'situated persons. Learned counsel for the respondents have not been in a position to show that the pensioner and M/s Bodh Raj Tej Ram

do not constitutes a class and were not similarly situated. Once it is proved that they were similarly situated they are entitled to be treated equally

and the respondents have no right to make any discrimination. The respondents have, however, submitted that they have decided not to permit M/s

Bodh Raj Tej Ram to ply their replaced vehicles after If that is the stand taken by the respondent which has not been justified on account or

ground of law, they can provide the same treatment to the petitioner as well but cannot deny him the replacement of the vehicle at this stage

contrary to the analogy of M/s Bodh Raj Taj Ram The respondents may be justified as appropriate orders with respect to all similarly situated

persons debarring them to ply their vehicles after March, 1994, if such course is permissible.

It is now well settled proposition of law that the State cannot make discrimination in the matters of its largesse or even la the grant of patents dad

quotas. It was held by the Supreme Court in R.D. Shetty V. International Airport Authority of India, AIR 1979 SC 1628 :

Today the Government, in a welfare State is the regulator and dispenser of special services and provider of a large number of benefits, including

jobs contracts, licences, quotas, minerals rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences.

The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional

forms of wealth. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash

grants for political sufferers and the whole scheme of Stats and local welfare. Then again, thousands of people are employed in the State and the

Central Government and local authorities. Licences are required before one can engage in many kinds of businesses or work. The power of giving

licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people.

Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is

virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and

controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilization by private

corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and

range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these

forms of wealth may be in the nature of legal fights but the large majority of them are in the nature of privileges. But en that account, can it be said

that they do not enjoy any legal protection ? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or

revoke it at its pleasure ? is the position of the Government in this respect of the same as that of a private giver ? We do not think so. The law has

not be""n slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has

developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while

others have been legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion

in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or

withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed but by Professor Reich in an especially stimulating article on

The New Property"" in 73 Yale Law Journal 733, ""that Government action be based on standards that are not arbitrary or unauthorised"". The

Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour or those having grey

hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the

matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual.

Learned counsel for the respondents, has, however, submitted that under Sec. 83 of the Act and Rule 93 of the Rules, only vehicle of the same

nature can be permitted to be replaced. It is contended as the vehicle of the petitioner with seating capacity of 35 passengers and wheel base of

205"" is not similar as was previously covered by Routepermit No. 7M3 the replacement, cannot be directed a; the tans is not permissible. Sec. 83

of the Act provides :

Replacement of vehicles : The holder of a permit may with the permission of the authority by which the permit was granted, replace any

vehicle covered by the permit by any other vehicle of the same nature.

Rule 93 of the Rules provides :

Replacement of a vehicle covered by a permit

(1) If a holder of permit desire at any time to replace any vehicle covered by the permit by another vehicle, be shall forward the permit and apply in

Form M V. Rep. A of the first schedule to the Transport Authority by which the permit was granted alongwith the application fee prescribed under

rule 80. Stating the reasons why the replacement is desired and shall also simultaneously :

(1) if the replacer vehicle is in his possession forward the certificate of registration of that vehicle : or

(ii) if the replacer vehicle is not in his possession, state any material particulars in respect of which the replacer vehicle shall differs from the vehicle

to be replaced.

(2) On receipt of an application under subrule (1) the Transport Authority may subject to the provisions of subrule (3) and, after ensuring that the

other conditions for granting a permit are fulfilled, grant permission for such replacement.

(3) The Transport Authority may, for reasons to be recorded and communicated to the applicant, reject any application made to it under sub. rule

(1) if the holder of the permit has contravened any provisions thereof or has been deprived of possession of the vehicle proposed to be replaced

under any hire purchase.

There has been lengthy arguments regarding the meaning of the word?, Vehicle of the same nature."" Whereas Mr. Thakur has argued that the

vehicle of the same nature has reference to the user of the Vehicle.

Mr. Bhagotra has submitted that it has reference to the type, make and nature of the vehicle including its wheel base. The paint raised by the

learned Counsel for the parties may not be relevant in the instant case in view of the fact that the respondents have themselves permitted the

replacement of the vehicles with seating capacity of 35 seats and wheel base of 205"" with vehicles having seating capacity of 43 seats and wheel

base of 166"". There is apparently force in the submission of Mr. Bhagotra for grant of the route permit or its replacement can be directed keeping

in view the make, size and the wheel base of the vehicle because if such criteria is not followed the same may result in mishaps. Vehicle of a

particular size and wheel base can be permitted to ply on certain routes keeping in view the nature of routes and other technical factors. The

respondents may be justified to hold that the vehicle of the size and wheel base as desired to be replaced by the petitioner and actually replaced by

M/S Bodh Raj Tej Ram, was not permissible on JammuKatra route on account of the condition of the road but until! and unless they decide it on

the basis of some material, they cannot be permitted to make hostile discrimination against the petitioner and in favour of a particular group of

persons. The filing of the application by the petitioner has not been denied and the rejection his application has not assigned any valid reason as

now have been urged at the bar while opposing this writ petition. A perusal of Annexure PG would clearly show that while rejecting the case,

RTA, had made the following observations :

As case stands already rejected after proper discussion of Rules, there is nothing new to reconsider the case. Motor Vehicles Act and Rules

framed there under do not permit such change. Hence rejected.

No valid reasons for rejecting the prayer of the petitioner have been assigned in the order. The respondents have also not produced any record to

show that the rejection of the prayer of the petitioner was made on the basis and the grounds which have now been canvassed at the bar. Under

sub rule (3) of Rule 93, the transport authority can reject an application for replacement of the vehicle if it is found that whole t f the permit has

contravened in provision thereof or has been deprived of possession of the vehicle proposed to be replaced under the hire purchase agreement.

Admittedly, such a disability do not exist in the case of the petitioner. The petitioner has therefore, made out a strong case for the issuance of

appropriate direction in his favour.

Under the circumstances the writ petition is allowed and letter/ order No. 881/RTOJ dated 4.6.1993 where by application of the petitioner for

replacement of the vehicle was rejected, is hereby quashed and a direction is issued to the respondents to allow replacement of vehicle No.

2585J&K. covered by routepermit No. 7MB/RTOJ dated 15111988 with vehicle No. 9649JfvS as prayed for by the petitioner. There shall be

no order as to costs.

As the petitioner involved only the question of law and the interpretation of law of some provisions of the Motor Vehicles Act, it was agreed by

learned counsel for the parties to dispose it of at this stage by issuing appropriate directions, without formally admitting it.

6.MP. No. 2104/93 shall stand disposed of accordingly.