ORDER
A.G. Qureshi, J.
1. This order shall also govern the disposal of M.P. No. 892 of 1989 (Prasanna Vhandra Chordiya and Anr. v. The Secretary, S.T.A., M. P., Gwalior and Anr.). The points which arise for determination in both these petitions being identical despite the facts being different, both the petitions are being disposed of by this common order.
2. M. P. No. 891 of 1989 is filed by the petitioners who are Ws operators plying passenger buses on the strength of permits granted to them by the Regional Transport Authority, Ujjain Region, Ujjaih. They hold permits for plying stage, carriage vehicles for the route Mandsaur-Neemuch and Neemuch-Rampura. By this petition the petitioners challenge grant of counter signatures on the temporary permit granted to respondent No. 3′ by Secretary, RTA, Kota on the route Rawatbhata-Neemuch, Via Gandhi Sagar, Rampura and Manasa, which is an inter-State route within the meaning of the Second Proviso of Section 45 of the Motor Vehicles Act. The total length of the route is 132 kms. out of which a major portion of this route i.e. 84 kms. is situated within the jurisdiction of the State of M. P. and the remaining portion lies in the State of Rajasthan. The route in question Rawatbhata-Neemuch is covered by the draft scheme No. 91, published under section 68C of the Motor Vehicles Apt. According to the petitioners the question of grant of temporary permit on the route in question, it being an inter-State route, is governed by the reciprocal transport agreement arrived at between the States of M. P. and Rajasthan, which is published in the Official Gazette dated 3-4-1975. In the said agreement, amongst 99 routes, the route Rawatbhata-Neemuch is not an agreed route. Therefore, no permit could be granted on the route which is not an agreed route in the reciprocal transport agreement. Therefore, the grant of permit and the counter signature on that permit by the Rajasthan and Madhya Pradesh Transport Authorities respectively are without jurisdiction and illegal. Other points are also raised challenging the grant of temporary permit, but we do not propose to deal with those contentions in view of the fact that the duration of the temporary permit has already expired. However, the competency of the Transport Authorities to grant an inter-State temporary permit on a route not covered by a reciprocal transport agreement being a larger issue we propose to decide this issue only.
3. In M. P. No. 892 of 1989 the petitioner has challenged the grant of temporary permit on the inter-State route Neemuch-Jhalawar Road, via Jawasia-Manasa-Rampura-Chambal Dam-Bhanpura inter alia on the ground that the route in question is specified in the reciprocal transport agreement arrived at between the States of Madhya Pradesh and Rajasthan after complying with the requirrments under section 63(3A) of the Act and the agreement has been published in the M. P. Government Gazette dated 3-4-1975 as required under sub-section (3-B) of section 63 of the Motor Vehicles Act. According to that agreement eight single trips to be plied by six buses by the M. P. State nominees are permissible. The eight trips, as agreed in the agreement, are already being operated by the M. P. Operators in accordance with the terms of the reciprocal agreement. Therefore, there being no scope on the route for issuance of an additional permit, the temporary permit could not be issued as it is against the reciprocal agreement.
4. The learned counsel for the petitioners in both these petitions Shri S. S. Agarwal strenuously argued that the reciprocal agreement between the States of Madhya Pradesh and Rajasthan has clearly determined the scope of the stage carriage permits to be issued by the respective States on the routes specified in the agreement. Therefore, there being a general concurrence pertaining to the scope of the route, no additional permit, even by way of issuance of temporary permit, could be granted to any of the operators in respect of any route which is not covered by the reciprocal transport agreement or in excess of the number of trips and vehicles as specified in the reciprocal agreement in respect of the routes about which there is an agreement between the two States. In support of his arguments Shri Agarwal has placed reliance on the Judgment of this Court in M. P. No. 162 of 1989 (Haji Abdul Hafiz Khan v. State Transport Appellate Tribunal and Ors.) decided on 24-6-1989 and a judgment of the Division Bench of the High Court of Rajasthan in Civil Writ Petition No. 447 of 1987 dated 20-4-1989. In M. P. No. 162 of 1989, this Court was considering the question of grant of a temporary permit on Banswada-Ratlam route. A part of the route in question was covered by Scheme No. 73 of the MPSRTC and scheme itself had carved out an exception in clause (3) of the scheme that the Rajasthan nominees could operate on the route in question in terms of the reciprocal agreement between the two States. In that case the Court found that the route being covered by a scheme no permit to a private operator could be issued except to those who are saved by the scheme itself and the operation of the route under the reciprocal agreement between the two States by the Rajasthan nominee being saved, only the number of permits allowed to operate on the route according to the reciprocal agreement could be granted in favour of the operators. The permit in question being in excess of the ceiling fixed in the reciprocal agreement, it was held, that the issuance of any permit in excess of the ceiling limit would be illegal.
5. In the Rajasthan Case of Ismail v. The State and Ors. (supra) (M-. P. No. 446 of 1987) and Ramgopal v. The State and Ors. (supra) (M. P. No. 447 of 1987) the petitioners were residents of M. P. They applied for temporary permit on the inter-State route falling within the territory of M. P, and Rajasthan. The grant of this permit was challenged by one Abdul Rehman, who was operating on a part of the route, by filing revision petition before the STAT, Rajasthan. The Tribunal accepted the revision petition and quashed the order of R.T.A., Kota countersigning the permits. The order of the STAT was challenged before the High Court and the High Court was of the view that there being no prior concurrence in respect of the permits in question by reciprocal transport agreement, the STAT was right in quashing the grant of countersignatures on the permits.
6. The grantees of the permits – respondents in both these petitions have defended the order impugned on this point on the ground that the temporary permits in question have been granted under section 62 read with section 68F(1-C) and section 63(4) of the Motor Vehicles Act,. As the Scheme has not been finalised within one year of its initial publication, the; scheme No. 91 does not exist in view of the provisions contained in section 100(4) of the Motor Vehicles Act, 1988. It has also been said, that in respect of the grant of permit on the route Neemuch-Jhalawar road, there is a clear vacancy of two single trips of two buses and, therefore, the grant of” permit is not against the reciprocal agreement. However, the respondents permit holders in both these petitions have specifically pleaded that existence of a reciprocal agreement is no bar to the grant of a temporary permit on an inter-State route.
7. The learned counsel for the respondents Shri G. M. Chaphekar and Shri R. G. Waghrnare have placed reliance on the recent judgment of the Supreme Court in the case of Goverdhan Lal Dhawan v. State of Bihar and Ors., AIR 1988 SC 1676 and of the Delhi High Court in the case of Nasiruddin v. The State Transport Authority, Delhi Administration and Ors., AIR 1981 Delhi 9. In view of the aforesaid arguments, the only question which arises for determination before us is whether a temporary permit on a inter-State route can be granted in excess of the quota fixed by the reciprocal agreement by the two States or on any route which is not covered by the reciprocal agreement. The Supreme Court in the case of Goverdhan Lal Dhawan v. State of Bihar (supra) has held that in the absence of any Rules to the contrary framed under the Act, a permit granted by one Regional Transport Authority of one region is not valid in any other region unless the permit has been countersigned by the Transport Authority of other region and a permit granted in any one State is not valid in any other State? unless it is countersigned by the State Transport Authority of other State or of the Regional Transport Authority: concerned. When countersigning the permit it is open to the Regional Transport Authority of the other region to impose its own conditions which it might have imposed if it had granted the permit. But if any Rules may be framed by the State Government under the Act, such Rules shall supersede the provisions of section 63 of the Act and the Rules framed in that regard had to be followed by the Transport Authorities in the case of inter-regional permits.
8. Dealing with the existence, of reciprocal agreement the Supreme Court in the same paragraph (Paragraph 5) of the judgment has held that:
“if there is an agreement between the State concerned with regard to the grant and the couritersignature of the permits, then it is not necessary to comply with the procedure prescribed by section 63 of the Act for countersignature of permits.”
Then in the end of paragraph 5 it has been obsered by underlining the portion of the judgment as under:
“In the absence of specific rules, the best way of harmonizing the powers and functions is to allow these inter-State authorities to exercise their power within their respective spheres in regard to grant and countersignature of permits by agreement and accord.”
However, in paragraph 6 of the judgment the Supreme Court has very clearly stated that the aforesaid observation is only a suggestion, but it is not a part of the ratio of the decision. It has further been added that in. fact, in case of inter-State permits there is already an express provision enabling two or more States to enter into an inter-State agreement. The learned” counsel for the respondent Shri Chaphekar has placed great reliance on the observation of the Supreme Court in paragraphs 5 and 7 of the aforesaid judgment. In para 7 of the judgment the Supreme Court has taken note of the fact that in the Motor Vehicles Act there is a provision of an agreement between two or more States in respect of an inter-State permit. Such an agreement can be arrived at only after following the procedure prescribed; under sub section (3-A) of section 63. of the Act, which provides for the publication of the proposal to enter into an agreement between the concerned States in the Official Gazette and calling for representations in connection therewith from the affected parties and also the publication of the time and place at which the proposal or any representation is received; in connection therewith will be considered by the Government concerned.’ At that stage it is open to the parties who are affected by the proposal to make all representations which they wish to make including the representation that there is no necessity to introduce any more stage carriages on the inter-State routes in question. In one sense the procedure prescribed in sub-section- (3-A) of section 63 of the Act takes the place of the procedure to be followed: by a Regional Transport Authority while granting or countersigning permits. Such an agreement can also be arrived at between the different regional transport authorities in the same State in respect of inter-regional permits if the State Government may so desire. But in the absence of any such Rule being there: for interregional agreement it is open to the affected parties to raise the contention that there is no necessity to issue any additional inter-regional permit before the Regional Transport Authority to which application for grant of permit is made as well as to the Regional Transport Authority to which an application for countersignature of the permit is made. As in that case there was no provision in the Act or in the Rules made by the State Government requiring the existence of such a prior agreement, the Court held that the Regional Transport Authorities are free to issue inter-regional permits and the permits shall be valid if countersigned on the inter-regional routes, but if it is not countersigned then it will be valid, only in the Region the Regional Transport Authority of which has issued the inter-regional permit,
9. After carefully going through the aforesaid dictum of the Supreme Court we are of the opinion that this authority is of no help to the respondents in the instant case. In the absence of an agreement between the Regional Transport Authorities the Supreme Court held that the Regional Transport Authority of one region was fully empowered to issue an inter-regional permit and that permit shall be valid in the other region only when countersigned by the other Regional Transport Authority. However, in cases where there is an inter-State agreement and the agreement is arrived at after following the procedure prescribed under sub-clause (3-A) of Section 63 of the Motor Vehicles Act the permits of the inter-State route has to be issued in accordance with the reciprocal transport agreement.
10. It has been contendedd that the reciprocal agreement between the two States governs only the matter of countersignature between the two States and if any route is covered by the reciprocal inter-State agreement then in respect of those routes a countersignature from the other State than the one issuing the permit shall not be necessary and if a need may arise to issue permits in excess of the reciprocal agreement, then the Transport Authorities are free to issue and countersign such permits which are either in excess of the reciprocal transport agreement or which are not specified in the agreement. For that purpose the learned counsel placed reliance on the case of Nasir-ud-din v. The State Transport Authority, Delhi Administration and Ors. (supra) wherein it has been held that there is nothing either in section 63(3) or the proviso thereto which can be read as meaning that once there is an agreement under the proviso to section 63(3), then section 63(3) ceases to apply even to the issue of inter-State permits and countersignatures thereon beyond the agreed number of permits. It cannot be said that the proviso to section 63(3) would be made nugatory if the application for countersignatures on inter-State permits is directed to be considered under the substantive part of section 63(3). For the application of the proviso is exhausted when the number of permits as agreed in the agreement between the two States is dealt with. The agreement does not extend beyond that number and, therefore, cannot be a bar to the consideration of the countersignature of another inter-State permit beyond the agreed number under a totally different provision, namely, the substantive part of section 63(3). An agreement between the two States under the proviso to section 63(3) operates only on the matters which are agreed to therein. It does not override section 63(3) in respect of matters which are not the subject matter of such an agreement.
11. As such the ratio of the aforesaid decision is that the agreement would extend only to the number of the vehicles and the routes which are fixed in the agreement and not beyond it. The number of vehicles covered in the agreement or not covered in the agreement can be dealt with independently under section 63(3) because the agreement would not override section 63(3) in respect of matters which are not the subject matter of such an agreement. As such, according to the Delhi High Court, if any matter is not covered by the agreement, then that route or the number of permits fixed by reciprocal agreement canncl be a bar to the issuance of permits which are not covered by the agreement. In the case which was before the Delhi High Court the number of vehicles on the inter-State route was fixed by reciprocal agreement and that number was increased. The increase was challenged on the ground of the existence of a reciprocal agreement. In those circumstances the Delhi High Court was of the view that as there is no bar in the inter-State agreement for issuance of permits in excess of the reciprocal agreement, the Transport Authorities were competent to issue permits and countersign them in excess of the number fixed by the reciprocal agreement in exercise of their powers under section 63(3) of the Motor Vehicles Act.
12. In the instant case, however, the position is different. The reciprocal agreement between the States of Madhya Pradesh and Rajasthan dated 3rd April, 1975 in clause 11 under the heading ‘Stage Carriage’ says.-
“Reciprocal arrangements in regard to the operation of stage carnages on inter-State routes between Madhya Pradesh and Rajasthan shall be according to the details contained in Appendix ‘A’.”
In Appendix ‘A’ the names of the routes, the area in Kilometres falling within the territory of Rajasthan and M.P., the number of permits permissible by the Rajasthan and M. P. Operators and the number of buses to be operated on the routes have been specified. The inter-State agreement has been published in the name of the Governor of M. P. in the Official Gazette. The inter-State agreement has been arrived at in accordance with the provisions of sub-section (3-A) of section 63 of the M. P. Motor Vehicles Act after following the procedure prescribed and the publication has been made in pursuance of sub-section (3-A) of section 63 of the Motor Vehicles Act, 1939. It has also been specified that the routes mentioned in Appendix ‘A’ shall always mean the shortest direct route connecting the two termini lying in the two States through the places mentioned therein. Sub-clause (c) of clause 11 of the reciprocal agreement reads as under:
“(c) The number of daily single trips and number of permits shall be strictly as fixed under the agreement and will not exceed under any circumstances. All such permits shall be got duly countersigned by the State Transport Authority or Regional Transport Authority connected as the case may be in other State.” (Underlining by us).
A perusal of the aforesaid clause (c) of clause 11 of the reciprocal agreement clearly shows that the number of daily single trips and number of permits shall be strictly in accordance with the reciprocal agreement and these permits have to be countersigned by the concerned State Transport Authority of the other State than the Transport Authority of the State which issued the permit. In the agreement there is a clear interdict imposed upon the issuance of permits in excess of the number of permits agreed upon under any circumstances. This is evident from the portion underlined by us which says that the number of permits and the number of daily single trips will not exceed under any circumstances. As such the bar contained in the agreement is binding on the Transport Authorities of both the States.
13. In the Delhi case in Nasir-ud-din v. The State Transport Authority, Delhi Administration and Ors. (supra), the learned Judges have also clearly said that the Transport Authorities shall be free to issue permits over and above the limit fixed by the transport agreement in absence of any bar contained in the agreement to issue permits in excess of those permits or routes which are covered by the agreement. But in the instant case there is a clear bar of issuance of the permits in excess of the permits and on any other route except agreed to between the two States under any other circumstances. As such the interdict imposed upon the issuance of permits on routes other than the routes agreed between the two States and any permit in excess of the number of permits fixed for the operators of each State the Transport Authorities have no power to issue any additional permit. The cases cited by the learned counsel for the respondents therefore, do not in any way help the respondents.
14. To conclude, we hold, that the Transport Authorities of the States of Rajasthan and Madhya Pradesh are not free in the matter of issuance and countersignatures of permits in excess of the number of permits and single trips fixed by the reciprocal agreement between the States of Rajasthan and Madhya Pradesh and they are also not free to issue permits on any other route than the routes which have been specified in the reciprocal agreement between the States of Madhya Pradesh and Rajasthan published in the gazette dated 3-4-1975.
15. As regards the factual aspect of these petitions, we have already held that due to the expiry of the duration of the permits we need not go into the merits pertaining to the issuance or countersignatures of the temporary permits by the Authorities. Both these petitions are, accordingly, allowed with no order as to costs. The amount of security cost, if any, deposited by the petitioners shall be refunded to them after verification.