Rakesh Kumar vs J and K Transport Welfare Association

Muzaffar Hussain Attar, J.—The Chairman, State Transport Authority and Transport Commissioner, Jammu, issued a public notice dated

15-03-2010, wherein and whereunder the persons, mentioned in the said public notice, were informed that their applications have been considered

for earmarking of route permit subject to completion of formalities and payment of appropriate fee. This public notice was issued in compliance

with the directions of the Government and after taking into consideration some vital factors which, inter alia, include the problems faced by the

commuters on account of transport deficiency in rural and other areas; for safety and benefit of general public and the commuters of the area. The

respondents - writ petitioners, who are the permit holders for plying the passenger vehicles on various routes, challenged the said public notice in

OWP 402/2010 on the principal ground that it has been issued in violation of Government order No. 34-TR of 2009 dated 28-05-2009.

The learned writ Court, in terms of order and judgement dated 23-09-2010, allowed the writ petition and set aside the impugned public notice.

The Government was left free to modify order dated 28-05-2009. It is this judgement/order, which is called in question in these three Letters'

Patent Appeals (LPA) by the Appellants, which includes the State Transport Authorities also, which are taken up for hearing together.

Learned counsel for the Appellants submitted that the public notice, which was called in question in the writ petition, was issued in public interest

and for the benefit of commuters and inhabitants of the far flung areas of Jammu region. Learned counsel made specific reference to sections 67 &

72 of the Motor Vehicles Act 1988 (for short Act of 1988) and submitted that the competent Statutory Authority has issued the public notice and

powers of such authority cannot be circumvented by the Government order dated 28-05-2009. Learned counsel further submitted that in order to

mitigate the hardships, to which the commuters and inhabitants of remote areas of Jammu Division were subjected to because of deficient transport

facilities, after taking stock of the relevant factors, it was deemed necessary to issue the route permits so as to authorize more people to ply their

vehicles on the routes. Learned counsel also submitted that the respondents - writ petitioners, who were issued route permits and authorized to ply

their passenger vehicles on the routes, have leased their vehicles to the Army for transportation of Army personnel and their such act subjected the

commuters/inhabitants of the areas to grave hardships. Learned counsel also submitted that because of shortage of passenger vehicles, instances

surfaced where the vehicles were over-loaded and met with accidents causing huge human loss. Learned counsel, in support of their contention,

referred to and relied upon the judgement of Hon'ble the Supreme Court rendered in Mithilesh Garg, Vs. Union of India and others etc. etc., and

judgement rendered in Pancham Chand and Others Vs. State of Himachal Pradesh and Others, and judgement rendered in Prabir Chatterjee Vs.

State of West Bengal and Others, .

Mr. Sunil Sethi, learned Senior Advocate, appearing on behalf of respondents writ petitioners, submitted that the public notice, which was

impugned in the writ petition, was issued in breach of Government order dated 28-05-2009. He submitted that the Government has the power to

issue such order, in view of mandate contained in Section 74(3)(a) of the Act of 1988. Learned counsel further submitted that the route permits,

which have been issued in favour of the Appellants, have been issued by the incompetent authority. He further submitted that the impugned public

notice as also the route permits have been issued in violation of the provisions of the Act of 1988. Learned counsel, accordingly, prayed for

dismissal of the Appeals.

Chapter (V) of the Act of 1988 deals with the control of transport vehicles. Section 66 of the Act of 1988 provides for necessity for permits.

Sub-section (1) of section 66 provides that ""no owner of a motor vehicle shall use or permit use of his vehicle as transport vehicle in any public

place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of the permit granted or

counter signed by the Regional or State Transport Authority or any prescribed authority authorizing him the use of vehicle in that place in the

manner in which the vehicle is being used."" Section 67 of the Act of 1988 provides about the power of State Government to control the road

transport. Sub section (I) of Section 67 provides that ""the State Government having regard to the advantages offered to the public, trade and

industry by the development of motor transport, the desirability of coordinating the road and rail transport, the desirability of preventing

deterioration of route system, desirability of preventing uneconomic competition among the holders of permits may, from time to time, by

notification in the official Gazette, issue directions both to the State Transport Authority and Regional Transport Authority in respect of fixing of

fares and freights for stage carriages, contract carriages and goods carriages, also regarding of prohibition, restriction, subject to such conditions as

may be specified in the directions, conveying of long distance goods traffic general, or of specified classes of goods by goods carriages and also

regarding any other matter, which may appear to the State Government necessary or expedient for giving effect to any agreement entered into

between Central Government or State Government or the Government of any other country relating to the regulation of motor transport generally,

and in particular to its coordination with other means of transport and conveying of long distance goods traffic. ""It is provided in section 67 that no

such notification in respect of last two situations shall be issued unless a draft of proposed directions is published in the official Gazette specifying

therein a date being not less than one month after such publication, and after giving the representatives of interests affected an opportunity of being

heard. Section 68 of the Act of 1988 deals with transport authorities. Sub-section (1) of section 68 provides that ""the State Government shall by

notification in the official Gazette, constitute for the State, a State Transport Authority to exercise and discharge powers and functions specified in

sub section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas as may be

specified in the notification in respect of each Regional Transport Authority, the powers and functions conferred by or under this Chapter on such

authorities ""Section 69 of the Act of 1988 deal with general provisions as to application for permits. Sub-section (1) of section 69 provides that

every application for permit shall he made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles.

It is further provided that ""if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be

made to Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the

proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to

keep the vehicle or vehicles."" Section 70 of the Act of 1988 deals with ""application for stage permit."" Section 71 of the Act of 1988 deals with

procedure of Regional Transport Authority in considering applications of stage carriage permits. This section provides that ""a Regional Transport

Authority shall, while considering application for stage carriage permit have regard to the objects of the Act."" Section 72 of the Act of 1988

provides that ""subject to provisions of section 71, a Regional Transport Authority may, on application made to it u/s 70, 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."" Section 73 of the Act of 1988

deals with application for contract carriage permit and section 74 of the Act of 1988 provides that ""subject to sub section (3), a Regional

Transport Authority may, on application made to it u/s 73, grant a contract carriage permit in accordance with the application or with such

modification as it deems fit or refuse to grant such a permit."" Sub section (3)(a) of section 74 provides that ""the State Government shall, if so

directed by the Central Government, having regard to the number of vehicles, road conditions and other relevant matters, by notification in the

official Gazette, direct the State Transport Authority and Regional Transport Authority to limit the number of contract carriages general or of any

specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lacs.

Section 80 provides for procedure for applying, for and granting permits. Sub-section (1) of section 80 provides that ""an application for a permit

of any kind may be made at any time."" Sub section (2) thereof provides"" a Regional Transport Authority, State Transport Authority or any

prescribed authority referred to in sub-section (1) of section 66, shall not ordinarily refuse to grant an application for permit of any kind made in

time under this Act. ""The first proviso of section 80 provides that, ""the Regional Transport Authority, State Transport Authority or any prescribed

authority referred to in sub-section (1) of section 66 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) of 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

sub section (3) of section 74. For refusing an application u/s (1) of section 66 for grant of permit of any kind under the Act, the Regional Transport

Authority, State Transport Authority or any prescribed authority shall give to the applicant in writing its reasons for refusal of the same and an

opportunity of being heard in the matter.

A conjoint reading of the provisions contained in Chapter V of the Act of 1988 projects a peculiar scheme, which has been brought into

existence by the legislature. The aim and object of the scheme of the Act of 1988, more particularly, of Chapter V thereof, makes issuance and

grant of permits liberal and allowing of applications for grant of permits has been statutorily liberated from the shackles by which it was bound by

the provisions of Motor Vehicles Act 1939. In the scheme of Chapter V of the Act of 1988, issuance of permit is a rule and refusal thereof is an

exception. A permit can be refused only in the manner prescribed in Chapter V of the Act of 1988 and by the authority named therein.

To liberalize the policy of issuance of permits is to provide proper transport facilities to the commuters. In the present times, road connectivity

and availability of transport facility is sine qua non to the overall development of an individual and the areas inhabited by human beings of the

State/country. Availability of more transport facility would lead to further prosperity of an individual and the inhabited areas besides generating

healthy competition amongst the transporters for providing better transport facilities to the commuters. Lesser the transport facility available to an

area, more the susceptibility of people of that area of getting exposed to various hazards like road accidents resulting in loss of precious lives

because of overloading of vehicles. A duty is, thus, cast on the statutory authorities to provide appropriate number of permits for plying of vehicles

in an area to meet the requirements of the commuters of that area.

In the present case, the respondents - writ petitioners are those persons who are holding permits for plying vehicles on the routes of the State.

They have prayed for quashment of the public notice dated 15-03-2010 on the ground that it violates the terms and conditions contained in the

Government order dated 28-05-2009.

In the scheme of Chapter V of the Act of 1988, more particularly, section 67 thereof, the State Government can control the road transport by

issuing directions from time to time to both the Regional Transport Authority and State Transport Authority, but such directions can be issued by

issuance of notification in the official Gazette. Proviso of section 67 further provides that in respect of provisos (ii) and (iii) of section 69, no such

notification can be issued unless draft of proposed directions is published in the official Gazette. Similarly, in terms of section 74(3)(a), the State

Government can, on the directions of Central Government, having regard to their number of vehicles, road conditions and other matters, by

notification in the official Gazette, direct the State Transport Authority and Regional Transport Authority to limit the number of contract carriages

general or of any specified type as may be fixed and specified in the notification, operating on city routes in towns with the population of not less

than five lacs. These are the powers conferred on the State Government by the Act of 1988. The State Government has no other power to control

and regulate the road transport or grant of contract carriage permit except in the manner prescribed in Chapter V of the Act of 1988, more

particularly, sections 67 and 74 thereof. The State Government is authorized to exercise powers in the manner prescribed by the aforementioned

provisions of the Act of 1988. The Government order dated 28-05-2009, in the aforestated legal scenario, cannot be said to be a legal order. The

Executive Authority, howsoever high it may be, cannot assume unto itself the powers, which are to be exercised by a statutory authority in

accordance with the mandate of law framed by Parliament/State Legislature.

The State Government can exercise power to control road transport and can issue directions to the statutory authority to limit the number of

contract carriages in accordance with the mandate contained in sections 67 and 74(3)(a) of the Act of 1988. A complete mechanism is provided in

section 67 about exercise of control on road transport by the State Government. The State Government can exercise this statutory power by

issuance of notification in the official Gazette. Similarly, the State Government can issue directions in terms of section 74(3)(a) by notification which

is to be published in the official Gazette. This is the mode prescribed by the provisions of the Act of 1988. The Government order dated 28-05-

2009 has not been issued in terms of provisions contained in Chapter V of the Act of 1988. The said Government order is greek to the scheme of

Chapter V of the Act of 1988. The Government order, in the afore stated legal background, is not only illegal but also void ab initio and is,

accordingly, held to be non existent in law.

The Respondents - writ petitioners claimed breach of Government order dated 28-05-2009 and on this basis have sought quashment of public

notice dated 15-03-2010. The entire writ petition is based on infringement of the conditions contained in Government order dated 28-05-2009.

Since the said Government order is held to be non existent in law, as such, writ petition filed by the respondents writ petitioners, will not sustain in

the eyes of law, consequently, the judgement impugned in these Appeals also cannot sustain in law.

Hon'ble the Supreme Court has dealt in great detail with the issue of grant of permits in Mithilesh Garg's case supra. In view of the law laid

down by Hon'ble the Supreme Court in the aforesaid case, the respondents - writ petitioners, in view of their pleadings in the writ petition, have no

locus standi to file the writ petition. In the background of our aforestated discussion, we hold that the impugned judgement is illegal. The LPAs are

allowed along with connected CMAs. The impugned judgement dated 23-09-2010, passed by learned single Judge, is set aside. Consequently,

writ petition (OWP 402/2010) also stands dismissed along with connected CMAs.