CASE NO.: Appeal (civil) 7085-7088 of 2001 PETITIONER: JAGDIP SINGH Vs. RESPONDENT: JAGIR CHAND AND ANOTHER DATE OF JUDGMENT: 10/10/2001 BENCH: M.B. SHAH & R.P. SETHI JUDGMENT:
Shah, J.
Leave granted.
Despite the legislative intent under the Motor Vehicles Act,
1988 to increase the number of buses on different routes for the
convenience and benefit of travelling public, there is reluctance on the
part of the authorities to implement the same. Having reached at a
saturation point wherein Permit Raj caused lot of inconvenience to the
bus operators as well as to the general public to a large extent, the
same is sought to be continued. There cannot be any doubt that there
can be certain restrictions on the bus operators for providing facilities
to the passengers, but when Legislature provides that permit should
not, ordinarily, be refused and has brought about a complete change
in the policy of granting permit, it would be unreasonable and unjust
on the part of the State Authorities to continue their old practice.
Further, in these days of liberalization in all fields, that too when we
are talking of globalization, it would be unjust to put fetter on the
exercise of fundamental rights of those persons who intend to carry on
the business as transport operators.
In these appeals, the order passed by the High Court of Punjab
and Haryana at Chandigarh setting aside the orders passed by the
State Transport Appellate Tribunal granting permits to operate mini
buses on certain routes to the appellants, is challenged. Orders passed
by the State Transport Appellate Tribunal were not challenged by the
State Transport Undertaking or the State Government but were
challenged by the Permit Holders who were running mini buses. It is
true that those who are having permits to operate on certain routes
would object to the grant of permit to other operators as it is likely to
affect their monopoly. This is bound to be there in all fields of
industry or business. At the same time, grant or refusal of such
permits is required to be governed by the provisions of law.
The objects and reasons of the Motor Vehicles Act, 1988 inter
alia provides that to take care of:-
(a) the fast increasing number of both commercial vehicles
and personal vehicles in the country; and
(b) simplification of procedure and policy liberalizations
for private sector operations in the road transport field;
the provisions are made under the Act.
This legislative policy is reflected in Section 80 (2) of the
Motor Vehicles Act, 1988 (hereinafter referred to as the Act) which
inter alia provides that a Regional Transport Authority shall not
ordinarily refuse to grant an application for permit of any kind made
at any time under the Act.
As early as 1974, this Court in case of Hans Raj Kehar v. State
of U.P. [(1975) 1 SCC 40] emphasised the need of having more and
more buses for the public convenience and observed thus: –
.The notification removes the bar created by
the limit on the number of permits for buses which could
be issued and facilitates the issue of such permits to fresh
applicants if they satisfy the requirement of eligibility. It
hardly needs much argument to show that the larger
number of buses operating on different routes would be
for the convenience and benefit of the travelling public
and as such would be in the public interest. Any measure
which results in larger number of buses operating on
various routes would necessarily eliminate or in any case
minimise long hours of waiting at the bus stands. It
would also relieve congestion and provide for quick and
prompt transport service. Good transport service is one
of the basic requirements of a progressive society.
Prompt and quick transport service being a great boon for
those who travel, any measure which provides for such
an amenity is in the very nature of things in the public
interest.
Further in Mithilesh Garg and Others v. Union of India and
others [(1992) 1 SCC 168], the existing bus operators challenged the
validity of Section 80 of the Motor Vehicles Act, 1988 on the ground
that they were adversely affected in exercise of their right under
Articles 14 and 19 of the Constitution of India. The Court negatived
the said contention by holding that it is only the State which can
impose reasonable restrictions within the ambit of Article 19(6) of the
Constitution of India on the guaranteed rights of every citizen whether
rich or poor, to take up and carry on, if he so wishes, the motor
transport business. Further, after considering the provisions of the
Repealed Act with regard to the grant of permit and sections 71, 72
and 80 of the new Act, the Court observed thus: –
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 Sections 47 and 57 under the
Act. The Statement of Objects and Reasons of the Act
shows that the purpose of brining in the Act was to
liberalise the grant of permits. Section 71(1) of the Act
provides that while considering an application for a
stage carriage permit, the Regional Transport Authority
shall have regard to the objects of the Act. Section
80(2), which is the harbinger of liberalization, provides
that a Regional Transport Authority shall not ordinarily
refuse to grant an application for permit of any kind
made at any time under the Act. There is no provision
under the Act like that of Section 47(3) of the old Act
and as such no limit for the grant of permits can be fixed
under the Act. There is, however, a provision under
Section 71(3)(a) of the Act under which a limit can be
fixed for the grant of permits in respect of the routes
which are within a town having population of more than
five lakhs.
The learned counsel for the respondent bus operators relied
upon the provisions of Section 99 of the Act and submitted that under
scheme framed by the State Government, the competent authority can
restrict grant of permits to the bus operators and therefore, the
Transport Authority was justified in rejecting the application for grant
of permit to mini buses operators on a particular route.
Hence, the question iswhether the State Government has
framed any such scheme. It is true that under Chapter VI, there are
Special provisions relating to State Transport Undertakings.
Section 98 also provides that the provisions of Chapter VI and the
rules and orders made thereunder shall have effect notwithstanding
anything inconsistent therewith contained in Chapter V which
includes Section 80. Thereafter sub-section (1) of Section 99 reads as
under: –
99. Preparation and publication of proposal
regarding road transport service of a State Transport
Undertaking.(1) Where any State Government is 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 services in general or any particular class
of such service in relation to any area or route or portion
thereof should be run and operated by the State Transport
Undertaking, whether to the exclusion, complete or
partial, of other persons or otherwise, the State
Government may formulate a proposal regarding a
scheme giving particulars of the nature of the services
proposed to be rendered, the area or route proposed to be
covered and other relevant particulars respecting thereto
and shall publish such proposal in the Official Gazette of
the State formulating such proposal and in not less than
one newspaper in the regional language circulating in the
area or route proposed to be covered by such scheme and
also in such other manner as the State Government
formulating such proposal deem fit.
From the aforesaid section, it is apparent that before framing the
scheme, the State Government should arrive at a conclusion that: –
(1) for the purpose of providing an efficient, adequate,
economical and properly co-ordinated road transport
service;
(2) it is necessary in the public interest;
(3) that the road transport services in general or in
particular class of such service in relation to any area or
route or portion thereof should be run and operated by
the State Transport Undertaking;
(4) to the exclusion, complete or partial of other persons or
otherwise;
(5) the State Government is required to formulate a
proposal regarding the scheme giving particulars
(a) nature of services proposed to be rendered,
(b) the area or route proposed to be covered and;
(c) other relevant particulars respecting thereto.
(6) and the State shall publish such proposal
(a) in the Official Gazette of the State
formulating such proposal;
(b) in not less than one newspaper in the
regional language circulating in the area or
route proposed to be covered by such
scheme; and
(c) in such other manner as the State
Government formulating such proposal
deem fit.
Main purpose of the aforesaid section is to have some
routes/area reserved for the State Transport Undertaking, that too, for
the purpose of providing an efficient, adequate, economical and
properly coordinated Road Transport service. Further, such scheme
must be in public interest, that is to say, larger number of buses
operating on different routes for the convenience and benefit of
travelling public at a cheaper rate. In such a scheme, some routes can
be reserved exclusively or partially for the State Transport
Undertakings.
In the rejoinder affidavit it has been pointed out that in the State
of Punjab, the State Transport Undertakings are not running mini
buses linking one village with another and as the State Transport
Undertaking is not running any mini bus linking the villages, the
Regional Transport Authority is bound by the provisions of Section 80
to grant permit.
At this stage we would refer to the alleged scheme upon which
reliance is placed by the learned counsel for the respondents. As such,
the State Government or the bus operators have not produced on
record properly modified scheme, but they have referred to the
Notification dated 21st October, 1997 which seeks to modify the
previous Scheme which was framed on 9th August, 1990 by
substituting some clauses. The relevant parts of the said clauses are as
under:-
(2). All Inter-state routes shall be operated by the State
Transport Undertakings and operations or private
operators whose permits were valid for a period of three
years from the date of the publication of the scheme,
shall remain unaffected.
Provided that the route operated by a private
operator, which became Inter-state route as a result of
reorganization of the State of Punjab in the year 1966,
shall not be affected by the Scheme.
Provided further that the operations of any State
other than State of Punjab or any Union Territory
including their private operators operating on any route
by virtue or the reciprocal agreement or permits granted
by such other states and countersigned by the State
Transport Authority or by the Regional Transport
Authority concerned as the case may be, shall remain
unaffected.
Provided further that a permit may be granted to a
private operator for operations of Air-conditioned buses
from the District Headquarter and important towns in the
State of Punjab to the Union Territory, Chandigarh.
(4). All future operations on monopoly routes shall be
operated by the State Transport Undertakings:
Provided that a private operator may be allowed to
operated on a portion of twenty per cent of the monopoly
route or up to the distance of fifteen kilometers of the
said route, whichever is less, where it is necessary or is in
public interest to do so:
Provided further that the permits granted by the
Regional Transport Authority before coming into force of
the scheme to the private operators for operating on
monopoly routes, wholly or on portion thereof or on the
routes in which the monopoly routes fall, shall remain
unaffected.
(7-A) While granting permits for operations on routes,
linking one village with another village without any city
or a town or municipality, in between the aforesaid two
villages, or a route linking a village with the block
headquarter or a municipality or city the use of the mini
buses may be allowed on the basis of passenger road
transport needs as assessed by the State Transport
Commissioner, Punjab from time to time.
Provided that: –
(e ) The total length of each such route does not exceed
25 kilometers and the total operation per bus, does
not exceed 250 kilometers per day.
(f) Not more than half of the total routes length runs
across a National Highway or State Highways.
(g) At least one of the terminal of the route shall be a
village and shall not include more than one
municipality except on a local route falling within
the municipal limits of a town, municipality or city
wherein both the starting and the terminating
points may be the same or may fall within the
same town, municipality or city, as the case may
be, and
(h) It shall be ensured that the interest of the State
Transport Undertakings are not affected adversely
on such routes.
For the purpose of these appeals, clauses 2 and 4 are not at all
relevant. Clause (2) provides for all Inter-state routes and clause (4)
provides for future operators on monopoly routes which are to be
operated by the State Undertakings. Relevant clause is clause (7-A)
and it nowhere reveals that it is in conformity with Section 99 of the
Act. Under Section 99 of the Act if the State Transport Undertaking
is to operate on a particular route, then only the scheme could be made
applicable. The aforesaid Scheme does not provide that the routes
mentioned in Clause 7(a) are to be covered and operated completely
or partially by the State Transport Undertaking. In such cases,
Section 80(2) would be applicable as under Section 99, the State
Government is not empowered to provide that only few private
operators would operate on a particular route/routes and Regional
Transport Authority or other prescribed authority cannot ordinarily
refuse to grant an application for permit of any kind made at any time
under the Act.
It is to be stated that in the present case, the order passed by the
Appellate Tribunal was not challenged by the State Government or by
the State Transport Undertaking, but was only challenged by the
private bus operators. However, in these appeals, it is not necessary
to consider whether they were having any locus standi to file petitions
before the High Court.
In the result, the appeals are allowed. Impugned orders passed
by the High Court are set aside. Orders passed by the Presiding
Officer, State Transport Appellate Tribunal, Punjab are restored.
There shall be no order as to costs.
J.
(M.B. Shah)
J.
October 10, 2001. (R.P. Sethi)